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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 30, 2023
HNR ACQUISITION CORP
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-41278 |
|
85-4359124 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
3730 Kirby Drive, Suite 1200
Houston, Texas 77098
(Address of principal executive offices, including
zip code)
(713) 834-1145
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title of each class: |
|
Trading symbol |
|
Name of each exchange on which registered |
Common stock, par value $0.0001 per share |
|
HNRA |
|
NYSE American |
Redeemable warrants, exercisable for three quarters of one share of common stock at an exercise price of $11.50 per share |
|
HNRAW |
|
NYSE American |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR§230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01. Entry into a Material Definitive Agreement
Forward Purchase
Agreement
On November 2, 2023,
HNR Acquisition Corp (the “Company” or “HNRA”) entered into an agreement with (i) Meteora Capital Partners, LP
(“MCP”), (ii) Meteora Select Trading Opportunities Master, LP (“MSTO”), and (iii) Meteora Strategic Capital, LLC
(“MSC” and, collectively with MCP and MSTO, “Seller”) (the “Forward Purchase Agreement”) for OTC Equity
Prepaid Forward Transactions. For purposes of the Forward Purchase Agreement, HNRA is referred to as the “Counterparty”. Capitalized
terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Forward Purchase Agreement.
Pursuant to the terms
of the Forward Purchase Agreement, the Seller intends, but is not obligated, to purchase up to 3,000,000 shares (the “Purchased
Amount”) of common stock, par value $0.0001 per share, of HNRA (“HNRA Shares”) concurrently with the closing of the
transactions contemplated by that Amended and Restated Membership Interest Purchase Agreement dated August 28, 2023 (the “A&R
MIPA”) by and among the Company, HNRA Upstream, LLC, a newly formed Delaware limited liability company which is managed by, and
is a subsidiary of, the Company (“OpCo”), and HNRA Partner, Inc., a newly formed Delaware corporation and wholly owned subsidiary
of OpCo (“SPAC Subsidiary”, and together with the Company and OpCo, “Buyer” and each a “Buyer”), CIC
Pogo LP, a Delaware limited partnership (“CIC”), DenCo Resources, LLC, a Texas limited liability company (“DenCo”),
Pogo Resources Management, LLC, a Texas limited liability company (“Pogo Management”), 4400 Holdings, LLC, a Texas limited
liability company (“4400”), and, solely with respect to Section 6.20 of the A&R MIPA, HNRAC Sponsors LLC, a Delaware
limited liability company (“Sponsor”) (the transactions contemplated by the A&R MIPA, collectively the “Purchase& Sale”), pursuant to the Seller’s FPA Funding Amount PIPE Subscription Agreement (as defined below), less the number
of HNRA Shares purchased by the Seller separately from third parties through a broker in the open market (“Recycled Shares”).
The Seller shall not be required to purchase an amount of HNRA Shares such that following such purchase, that Seller’s ownership
would exceed 9.99% of the total HNRA Shares outstanding immediately after giving effect to such purchase, unless the Seller, at its sole
discretion, waives such 9.99% ownership limitation. The Purchased Amount subject to the Forward Purchase Agreement is subject to reduction
following a termination of the Forward Purchase Agreement with respect to such shares, as further described in the Forward Purchase Agreement.
The Forward Purchase
Agreement provides for a prepayment shortfall in an amount in U.S. dollars equal to 0.50% of the product of the Recycled Shares and the
Initial Price (defined below). Seller in its sole discretion may sell Recycled Shares (i) at any time following November 2, 2023 (the
“Trade Date”) at prices greater than the Reset Price or (ii) commencing on the 180th day following the Trade Date at any sales
price, in either case without payment by Seller of any Early Termination Obligation until such time as the proceeds from such sales equal
100% of the Prepayment Shortfall (as set forth under the section entitled “Shortfall Sales” in the Forward Purchase Agreement)
(such sales, “Shortfall Sales,” and such Shares, “Shortfall Sale Shares”). A sale of Shares is only (a) a “Shortfall
Sale,” subject to the terms and conditions herein applicable to Shortfall Sale Shares, when a Shortfall Sale Notice is delivered
under the Forward Purchase Agreement, and (b) an Optional Early Termination, subject to the terms and conditions of the Forward Purchase
Agreement applicable to Terminated Shares, when an OET Notice is delivered under the Forward Purchase Agreement, in each case the delivery
of such notice in the sole discretion of the Seller (as further described in the “Optional Early Termination” and “Shortfall
Sales” sections in the Forward Purchase Agreement).
The Forward Purchase
Agreement provides that the Seller will be paid directly an aggregate cash amount (the “Prepayment Amount”) equal to (x) the
product of (i) the number of HNRA Shares as set forth in a Pricing Date Notice and (ii) Per-Share Redemption Price as defined in HNRA’s
Certificate of Incorporation, effective as of February 10, 2022, as amended from time to time (the “Initial Price”), less
(y) the Prepayment Shortfall.
Counterparty will pay
to the Seller the Prepayment Amount required under the Forward Purchase Agreement directly from the Counterparty’s Trust Account
maintained by Continental Stock Transfer and Trust Company holding the net proceeds of the sale of the units in Counterparty’s initial
public offering and the sale of private placement warrants (the “Trust Account”), no later than the earlier of (a) one Local
Business Day after the Closing Date and (b) the date any assets from the Trust Account are disbursed in connection with the Purchase &
Sale; except that to the extent that the Prepayment Amount is to be paid from the purchase of Additional Shares by Seller, such amount
will be netted against such proceeds, with Seller being able to reduce the purchase price for the Additional Shares by the Prepayment
Amount. For the avoidance of doubt, any Additional Shares purchased by the Seller will be included in the Number Purchased Amount under
the Forward Purchase Agreement for all purposes, including for determining the Prepayment Amount.
Following the Closing,
the reset price (the “Reset Price”) will be $10.00; provided that the Reset Price shall be reduced pursuant to a Dilutive
Offering Reset immediately upon the occurrence of such Dilutive Offering. The Purchased Amount subject to the Forward Purchase Agreement
shall be increased upon the occurrence of a Dilutive Offering Reset to that number of Shares equal to the quotient of (i) the Purchased
Amount divided by (ii) the quotient of (a) the price of such Dilutive Offering divided by (b) $10.00.
From time to time and
on any date following the Trade Date (any such date, an “OET Date”) and subject to the terms and conditions in the Forward
Purchase Agreement, Seller may, in its absolute discretion, terminate the Transaction in whole or in part by providing written notice
to Counterparty (the “OET Notice”), by the later of (a) the fifth Local Business Day following the OET Date and (b) no later
than the next Payment Date following the OET Date, (which shall specify the quantity by which the Number of Shares shall be reduced (such
quantity, the “Terminated Shares”)). The effect of an OET Notice shall be to reduce the Number of Shares by the number of
Terminated Shares specified in such OET Notice with effect as of the related OET Date. As of each OET Date, Counterparty shall be entitled
to an amount from Seller, and the Seller shall pay to Counterparty an amount, equal to the product of (x) the number of Terminated Shares
and (y) the Reset Price in respect of such OET Date. The payment date may be changed within a quarter at the mutual agreement of the parties.
The “Valuation
Date” will be the earlier to occur of (a) the date that is three (3) years after the date of the closing of the Purchase & Sale
(the date of the closing of the Purchase & Sale, the “Closing Date”) pursuant to the A&R MIPA, (b) the date specified
by Seller in a written notice to be delivered to Counterparty at Seller’s discretion (which Valuation Date shall not be earlier
than the day such notice is effective) after the occurrence of any of (w) a VWAP Trigger Event, (x) a Delisting Event, (y) a Registration
Failure or (z) unless otherwise specified therein, upon any Additional Termination Event, and (c) the date specified by Seller in a written
notice to be delivered to Counterparty at Seller’s sole discretion (which Valuation Date shall not be earlier than the day such
notice is effective). The Valuation Date notice will become effective immediately upon its delivery from Seller to Counterparty in accordance
with the Forward Share Purchase Agreement.
On the “Cash Settlement
Payment Date,” which is the tenth Local Business Day immediately following the last day of the Valuation Period, the Seller will
remit to the Counterparty an amount equal to the Settlement Amount and will not otherwise be required to return to the Counterparty any
of the Prepayment Amount and the Counterparty shall remit to the Seller the Settlement Amount Adjustment; provided, that if the Settlement
Amount less the Settlement Amount Adjustment is a negative number and either clause (x) of Settlement Amount Adjustment applies or the
Counterparty has elected pursuant to clause (y) of Settlement Amount Adjustment to pay the Settlement Amount Adjustment in cash, then
neither the Seller nor the Counterparty shall be liable to the other party for any payment under the Cash Settlement Payment Date section
of the Forward Purchase Agreement.
The Seller has agreed
to waive any redemption rights with respect to any Recycled Shares in connection with the Purchase & Sale, as well as any redemption
rights under HNRA’s Certificate of Incorporation that would require redemption by HNRA. Such waiver may reduce the number of HNRA
Shares redeemed in connection with the Purchase & Sale, and such reduction could alter the perception of the potential strength of
the Purchase & Sale. The Forward Purchase Agreement has been structured, and all activity in connection with such agreement has been
undertaken, to comply with the requirements of all tender offer regulations applicable to the Purchase & Sale, including Rule 14e-5
under the Securities Exchange Act of 1934.
A copy of the form of
Forward Purchase Agreement is filed herewith as Exhibit 10.1, and the foregoing description of the Forward Purchase Agreement is qualified
in its entirety by reference thereto.
FPA Funding Amount
PIPE Subscription Agreements
On November 2,
2023, HNRA entered into a subscription agreement (the “FPA Funding Amount PIPE Subscription Agreement”) with Seller.
Pursuant to the FPA Funding
PIPE Subscription Agreement, Seller agreed to subscribe for and purchase, and HNRA agreed to issue and sell to Seller, on the Closing
Date, an aggregate of up to 3,000,000 HNRA Shares, less the Recycled Shares in connection with the Forward Purchase Agreement.
A copy of the form of
FPA Funding Amount PIPE Subscription Agreement is filed herewith as Exhibit 10.2, and the foregoing description of the FPA Funding Amount
PIPE Subscription Agreement is qualified in its entirety by reference thereto.
Item 2.03 Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance of a Registrant
The information disclosed under Item 1.01 of this Current Report on
Form 8-K (this “Report”) is incorporated into this Item 2.03 to the extent required herein.
Item 3.02
Unregistered Sales of Equity Securities
The information disclosed under Item 1.01 of this Report is incorporated
into this Item 3.02 to the extent required herein.
Item 5.07 Submission of Matters to a Vote of Security Holders
On October 30, 2023,
the Company, convened and adjourned, without conducting any other business, its special meeting of its stockholders (the “Special
Meeting”) held in connection with: (i) a proposal to approve and adopt the A&R MIPA, and the transactions contemplated thereby
(the “Purchase” and such proposal, the “Purchase Proposal”), (ii) a proposal to approve and adopt the HNR Acquisition
Corp 2023 Omnibus Incentive Plan, a copy of which is attached to the Proxy Statement (as defined below) as Annex B (the “Incentive
Plan Proposal”), (iii) a proposal to approve, for purposes of complying with NYSE American Rule 713(a), the potential and likely
issuance of more than 19.99% of the Company’s issued and outstanding shares of common stock including securities convertible into
common stock pursuant to the Purchase transactions and issuances which may be made pursuant to a potential private offering (the “NYSE
American Proposal”), (iv) a proposal to approve and adopt, the second amended and restated certificate of, a copy of the form of
which is attached to the Proxy Statement as Annex I (the “Charter Proposal”), and (v) a proposal to approve the adjournment
of the Special Meeting to a later date or dates, if necessary (the “Adjournment Proposal”), as each is further described in
the Company’s definitive proxy statement filed with the Securities and Exchange Commission (the “SEC”) on October 13,
2023 (the “Proxy Statement”).
The record date for the
stockholders entitled to notice of, and to vote at, the Special Meeting was October 10, 2023. At the close of business on that date, the
Company had 7,515,653 shares of common stock issued and outstanding and entitled to be voted at the Special Meeting. Of the 7,515,653
shares of common stock issued and outstanding and entitled to be voted at the Special Meeting, 6,317,236 shares (or 84.05%), constituting
a quorum, were represented in person or by proxy at the Special Meeting.
The sole proposal that
was presented at the Special Meeting was the Adjournment Proposal. The Company’s stockholders approved the Adjournment Proposal.
The voting results were as follows:
Votes For | | |
Votes Against | | |
Votes Abstained | |
| 5,811,643 | | |
| 505,593 | | |
| 0 | |
The Special Meeting was
adjourned to and the Company plans to reconvene the Special Meeting at 10:00 a.m.
eastern on Monday, November 13, 2023.
Based upon the preliminary
reports that have been provided to the Company, the holders of an aggregate of 4,480,725 public shares of the Company’s common stock
have submitted requests that their public shares be redeemed in connection with the Special Meeting, with these redemptions only taking
effect upon the closing of the closing of the A&R MIPA.
Item 8.01. Other Events
On November 3, 2023,
the Company issued a press release announcing the postponement of the Special Meeting, which is filed herewith as Exhibit 99.1 to this
report and which is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
The following exhibits are being filed herewith:
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
November 3, 2023 |
HNR Acquisition Corp |
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By: |
/s/ Donald H. Goree |
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Name: |
Donald H. Goree |
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Title: |
Chief Executive Officer |
4
Exhibit 10.1
Execution Version
Date: |
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November 2, 2023 |
|
|
To: |
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HNR Acquisition Corp, a Delaware
corporation (“HNRA”). |
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Address: |
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3730 Kirby Drive, Suite 1200
Houston, Texas 77098 |
|
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From: |
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(i) Meteora
Capital Partners, LP (“MCP”), (ii) Meteora Select Trading Opportunities Master, LP (“MSTO”)
and (iii) Meteora Strategic Capital, LLC (“MSC”) (with MCP, MSTO and MSC collectively as “Seller”) |
|
|
Re: |
|
OTC Equity Prepaid Forward
Transaction |
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|
|
The purpose of this agreement (this
“Confirmation”) is to confirm the terms and conditions of the transaction (the “Transaction”)
entered into between Seller and HNRA on the Trade Date specified below. The term “Counterparty”
refers to HNRA. In connection with the transactions contemplated by the Transaction Agreement (as defined below), CIC Pogo LP, a Delaware limited partnership (“CIC”),
DenCo Resources, LLC, a Texas limited liability company (“DenCo”), Pogo Resources Management, LLC, a Texas limited
liability company (“Pogo Management”), 4400 Holdings, LLC, a Texas limited liability company (“4400”
and, together with CIC, DenCo and Pogo Management, collectively, “Target”) shall sell,
assign, and convey to HNRA, and HNRA shall purchase and accept from Seller, effective as of the Effective Time (as defined in the
Transaction Agreement), the Target Interests (as defined in the Transaction Agreement) (the aforementioned transaction and other
transactions contemplated by the Transaction Agreement, collectively, the “Purchase & Sale”). Certain terms
of the Transaction shall be as set forth in this Confirmation, with additional terms as set forth in a pricing date notice (the
“Pricing Date Notice”) in the form of Schedule A hereto. This Confirmation, together with the Pricing Date
Notice(s), constitutes a “Confirmation” and the Transaction constitutes a separate “Transaction” as referred
to in the ISDA Form (as defined below).
This Confirmation, together with the Pricing
Date Notices, evidences a complete binding agreement between Seller and HNRA as to the subject matter and terms of the
Transaction to which this Confirmation relates and shall supersede all prior or contemporaneous written or oral communications with
respect thereto.
The 2006 ISDA Definitions (the “Swap
Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and with the Swap
Definitions, the “Definitions”), each as published by the International Swaps and Derivatives Association, Inc., are
incorporated into this Confirmation. If there is any inconsistency between the Definitions and this Confirmation, this Confirmation governs.
If, in relation to the Transaction to which this Confirmation relates, there is any inconsistency between the ISDA Form, this Confirmation
(including the Pricing Date Notice), the Swap Definitions and the Equity Definitions, the following will prevail for purposes of such
Transaction in the order of precedence indicated: (i) this Confirmation (including the Pricing Date Notice(s)); (ii) the Equity Definitions;
(iii) the Swap Definitions, and (iv) the ISDA Form.
This Confirmation, together with the Pricing
Date Notice, shall supplement, form a part of, and be subject to an agreement in the form of the ISDA 2002 Master Agreement (the “ISDA
Form”) as if Seller and Counterparty had executed an agreement in such form (but without any Schedule except as set
forth herein under “Schedule Provisions”) on the Trade Date of the Transaction.
The terms of the particular Transaction to which
this Confirmation relates are as follows:
General Terms
Type of Transaction: |
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Share Forward Transaction |
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Trade Date: |
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November 2, 2023 |
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Pricing Date: |
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As specified in a Pricing Date Notice. |
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Effective Date: |
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One (T+2) Settlement Cycle following the Pricing Date. |
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Valuation Date: |
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The earlier to occur of (a)
the date that is three years following the closing of the transactions between Counterparty and Target pursuant to the Membership
Interest Purchase Agreement, dated as of December 27, 2022, as amended and restated on August 28, 2023 (as may be further amended
or restated from time to time, the “Transaction Agreement”) and, (b) the date specified by Seller in a written
notice to be delivered to Counterparty at Seller’s discretion (which Valuation Date shall not be earlier than the day such
notice is effective) after the occurrence of any of (w) a VWAP Trigger Event, (x) a Delisting Event, (y) a Registration Failure or
(z) unless otherwise specified therein, upon any Additional Termination Event, and (c) the date specified by Seller in a written
notice to be delivered to Counterparty at Seller’s sole discretion (which Valuation Date shall not be earlier than the day
such notice is effective). The Valuation Date notice will become effective immediately upon its delivery from Seller to Counterparty
in accordance with this Confirmation. |
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VWAP Trigger Event: |
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An event that occurs if the
VWAP Price, for any 10 trading days during a 30 consecutive trading day-period, is below $5.00 per Share. |
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VWAP Price: |
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For any scheduled trading
day, the volume weighted average price per Share for such day as reported on the relevant Bloomberg Screen “HNRA <Equity>
AQR SEC” (or any successor thereto), or if such price is not so reported on such trading day for any reason or is erroneous,
the VWAP Price shall be as reasonably determined by the Calculation Agent. |
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Reset Price: |
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The Reset Price shall be $10.00;
provided that the Reset Price shall be reduced pursuant to a Dilutive Offering Reset immediately upon the occurrence of such Dilutive
Offering. |
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Dilutive Offering Reset: |
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To the extent the Counterparty
closes any agreement to sell or grants any right to reprice, or otherwise disposes of or issues (or announce any offer, sale, grant
or any option to purchase or other disposition) any Shares or any securities of the Counterparty or any of its respective subsidiaries
(but for the avoidance of doubt, excluding any secondary transfers), which would entitle the holder thereof to acquire or sell on
behalf of the Counterparty at any time Shares or other securities, including, without limitation, any debt, preferred stock, preference
shares, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Shares or other securities, at an effective price per share less than the then existing Reset
Price (a “Dilutive Offering”), then the Reset Price shall be modified to equal such reduced price as of such date;
provided that, without limiting the foregoing, a Dilutive Offering Reset (for the avoidance of doubt) (i) shall not include
any White Lion Equity Line of Credit, (ii) shall not include the grant, issuance or exercise of employee stock options or other
equity awards under the Counterparty’s equity compensation plans or Shares underlying warrants now outstanding or issued in
connection with the Purchase & Sale, (iii) shall not include Shares issued in connection with the Purchase & Sale pursuant
to the Transaction Agreement, or (iv) shall not include any Shares or other securities convertible or exercisable for Shares issued
pursuant to any other acquisition, merger or similar transaction by the Counterparty. |
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Seller: |
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Seller. |
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Buyer: |
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Counterparty. |
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Shares: |
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Prior to the closing of the
Purchase & Sale, shares of the common stock, par value $0.0001 per share, of HNR Acquisition Corp (Ticker: “HNRA”)
and, after the closing of the Purchase & Sale, Class A common stock, par value $0.0001 per share, of HNRA. |
Number of Shares: |
|
The sum of (i)
the number of Recycled Shares plus (ii) the number of Additional Shares, but in no event more than the Maximum Number of Shares.
The Number of Shares is subject to reduction only as described under “Optional Early Termination.” |
|
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Maximum Number of Shares: |
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Initially 3,000,000 (the “Potential
Amount”); upon the occurrence of a Dilutive Offering Reset, a number of Shares equal to the quotient of (i) the Potential
Amount divided by (ii) the quotient of (a) the price of such Dilutive Offering divided by (b) $10.00. For the avoidance
of doubt, any adjustment pursuant to a Dilutive Offering Reset shall only result in an increase to the Maximum Number of Shares. |
|
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Initial Price: |
|
Equals the Per-Share Redemption
Price (the “Redemption Price”) as defined in of HNRA’s Certificate of Incorporation, effective as of February
10, 2022, as amended from time to time (the “Certificate of Incorporation”). |
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Recycled Shares: |
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The number of Shares purchased
by Seller from third parties (other than Counterparty) through a broker in the open market (other than through Counterparty); provided
that (a) if such Shares have been purchased by Seller prior to the time set forth in the Definitive Proxy Statement Prospectus dated
as of October 12, 2023 for submission of a written request to redeem such Shares as provided for in accordance Section 9.2 of the
Certificate of Incorporation (the “Redemption Deadline”), Seller shall have irrevocably waived all redemption rights
with respect to such Shares as provided below in the section captioned “Transactions by Seller in the Shares” and (b)
if such Shares have been purchased by Seller after the Redemption Deadline, then the third party from whom Seller purchased such
Shares shall have submitted a written reversal of the redemption request such third party previously submitted to Continental Stock
Transfer and Trust Company prior to the Redemption Deadline, which has been confirmed by Counterparty. Seller shall specify the number
of Recycled Shares (the “Number of Recycled Shares”) in the initial Pricing Date Notice. For the avoidance of
doubt, Recycled Shares shall only include Shares the Seller either (i) refrained from exercising its redemption rights on in connection
with the Purchase & Sale or (ii) purchased from third parties that previously elected to redeem shares and reversed the redemption
election on such shares. |
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PIPE Subscription Agreement: |
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The Counterparty and Seller have entered into a subscription
agreement for the purchase by Seller of the Additional Shares (the “PIPE Subscription Agreement”), and to the
extent that the Seller is unable to acquire all of the Additional Shares prior to the closing of the Purchase & Sale, from time
to time will enter into additional PIPE Subscription Agreement(s) for the purchase by Seller of the remaining Additional Shares. As
of the date hereof, the PIPE Subscription Agreement is in full force and effect and is legal, valid and binding upon the Counterparty
and, to the knowledge of the Counterparty, the Seller, enforceable in accordance with it terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject,
as to enforceability, to general principles of equity. Seller shall purchase pursuant to the PIPE Subscription Agreement,
Additional Shares in an amount no less than the Maximum Number of Shares less the Recycled Shares; provided, however, that Seller
shall not be required to purchase an amount of Additional Shares such that following the issuance of Additional Shares, its ownership
would exceed 9.9% ownership of the total Shares outstanding immediately after giving effect to such issuance unless Seller at
its sole discretion waives such 9.9% ownership limitation. |
Additional Shares: |
|
The Seller will
purchase Additional Shares from the Counterparty at any date prior to the Valuation Date at the Initial Price, with such number of
Shares to be specified in a Pricing Date Notice as Additional Shares subject to 9.9% ownership limitations which may be waived
by Seller at its sole discretion; provided that such number of Additional Shares that may be purchased from the Counterparty shall
not exceed (x) the Maximum Number of Shares, minus (y) the Recycled Shares. For the avoidance of doubt, any Additional Shares purchased
by Seller will be included in the Number of Shares for all purposes. |
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Prepayment Amount: |
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A cash amount equal to the
product of (i) the Number of Shares as set forth in a Pricing Date Notice and (ii) the Initial Price less (y) the Prepayment Shortfall. |
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Prepayment: |
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Subject to Counterparty receiving a Pricing
Date Notice, Counterparty will pay the Prepayment Amount by bank wire in immediately available funds to an account designated by
Seller from (subject to the below exception) the Counterparty’s Trust Account maintained by Continental Stock Transfer &
Trust Company holding the net proceeds of the sale of the units in Counterparty’s initial public offering and the sale of private
placement warrants (the “Trust Account”), no later than the earlier of (a) one Local Business Day after the Closing
Date and (b) the date any assets from the Trust Account are disbursed in connection with the Purchase & Sale; except that to
the extent that the Prepayment Amount is to be paid from the purchase of Additional Shares by Seller, such amount will be netted
against such proceeds, with Seller being able to reduce the purchase price for the Additional Shares by the Prepayment Amount.
Counterparty shall provide notice to (i)
Counterparty’s trustee of the entrance into this Confirmation no later than one Local Business Day following the date hereof,
with copy to Seller and Seller’s outside legal counsel, and (ii) Seller and Seller’s outside legal counsel a final
draft of the flow of funds from the Trust Account one Local Business Day prior to the closing of the Purchase & Sale itemizing
the Prepayment Amount due to Seller; provided that Seller shall be invited and permitted to attend any closing call in connection
with the Purchase & Sale. |
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Prepayment Shortfall: |
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An amount in USD equal to
0.50% of the product of the Recycled Shares and the Initial Price; Seller shall pay the Prepayment Shortfall to Counterparty on the
Prepayment Date (which amount shall be netted from the Prepayment Amount). |
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Prepayment Shortfall Consideration: |
|
Seller in its sole discretion
may sell Recycled Shares (i) at any time following the Trade Date at prices greater than the Reset Price or (ii) commencing on the
180th day following the Trade Date at any sales price, in either case without payment by Seller of any Early Termination
Obligation (as defined below) until such time as the proceeds from such sales equal 100% of the Prepayment Shortfall (as set forth
under Shortfall Sales below) (such sales, “Shortfall Sales,” and such Shares, “Shortfall Sale Shares”).
A sale of Shares is only (a) a “Shortfall Sale,” subject to the terms and conditions herein applicable to Shortfall Sale
Shares, when a Shortfall Sale Notice is delivered hereunder, and (b) an Optional Early Termination, subject to the terms and conditions
herein applicable to Terminated Shares, when an OET Notice (as defined below) is delivered hereunder, in each case the delivery of
such notice in the sole discretion of the Seller. |
Variable Obligation: |
|
Not applicable. |
|
|
Exchanges: |
|
Nasdaq Stock Market LLC, New
York Stock Exchange LLC or NYSE American LLC |
|
|
Related Exchange(s): |
|
All Exchanges |
|
|
Payment Dates: |
|
Following the Purchase &
Sale, the last day of each calendar quarter or, if such date is not a Local Business Day, the next following Local Business Day,
until the Valuation Date. |
|
|
Reimbursement of Legal Fees and
Other Expenses: |
|
Together with the Prepayment
Amount, Counterparty shall pay to Seller an amount equal to (a) the reasonable and documented attorney fees and other reasonable
out-of-pocket expenses related thereto actually incurred by Seller or its affiliates in connection with this Transaction, not to
exceed $75,000 in the aggregate and (b) expenses actually incurred in connection with the acquisition of the Recycled Shares in an
amount not to exceed $0.07 per Recycled Share. |
|
|
Settlement Terms |
|
|
|
|
Settlement Method Election: |
|
Not Applicable. |
|
|
Settlement Method: |
|
Cash Settlement. |
|
|
Settlement Amount: |
|
In the event the Valuation Date is determined
by clause (c) of the above section entitled Valuation Date, a cash amount equal to (1) the Number of Shares as of the Valuation Date,
multiplied by (2) the closing price of the Shares on the Exchange Business Day immediately preceding the Valuation Date.
In all other cases, a cash amount equal to
the Number of Shares as of the Valuation Date less the number of Unregistered Shares (as defined below), multiplied by the volume
weighted daily VWAP Price over the Valuation Period.
Unless the Valuation Date is determined by
clause (c) of the above section entitled “Valuation Date,” in the event that Seller has delivered a Registration Request
at least 90 days prior to the Valuation Date (other than where the Valuation Date results from the occurrence of clause (a) in the
definition of Registration Failure), Shares which are set forth in Pricing Date Notices that are neither registered for resale under
an effective resale Registration Statement nor transferable without any restrictions pursuant to an exemption from the registration
requirements of Section 5 of the Securities Act, including pursuant to Rule 144 (so long as not subject to the requirement for
the Counterparty to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if
applicable) the volume and manner of sale limitations under Rule 144(e), (f) and (g)) (in either event, “Unregistered Shares”)
will not be included in the calculation of the Settlement Amount. |
Settlement Amount
Adjustment: |
|
A cash amount equal to the product of (1)
the Maximum Number of Shares as of the Valuation Date multiplied by (2) $3.00. The Settlement Amount Adjustment shall be paid (x)
in the event that the expected Settlement Amount determined by the VWAP Price over the 15 scheduled trading days ending on but
excluding the Valuation Date exceeds the Settlement Amount Adjustment, in cash (in which case the Settlement Amount Adjustment will
be automatically netted from the Settlement Amount and any remaining amount paid in cash), or (y) otherwise, at the option of Counterparty,
in cash or Shares (such Shares, the “Maturity Shares”) (other than in the case of a Delisting Event, in which
case the Settlement Amount Adjustment must be paid in cash). In the event that Counterparty is eligible to pay the Settlement Amount
Adjustment using Maturity Shares, Counterparty will be deemed to have elected to pay the Settlement Amount Adjustment in Maturity
Shares unless Counterparty notifies Seller no later than ten Local Business Days prior to the Valuation Date that Counterparty elects
to pay the Settlement Amount Adjustment in cash. In the event the Settlement Amount Adjustment is paid in Maturity Shares then, on
the Valuation Date, Counterparty shall deliver to Seller an initial calculation of the Maturity Shares equal to (a) the Settlement
Amount Adjustment divided by (b) the volume weighted daily VWAP Price over the 15 scheduled trading days ending on but excluding
the Valuation Date (the “Estimated Maturity Shares”). The total number of Maturity Shares to be delivered to Seller
by Counterparty shall be based on the volume weighted daily VWAP Price over the Valuation Period (the “Final Maturity Shares”).
On the Local Business Day following the end of the Valuation Period, (i) if the Final Maturity Shares exceeds the Estimated Maturity
Shares, Counterparty shall deliver to Seller an additional number of Maturity Shares equal to such excess, and (ii) if the volume
weighted daily VWAP Price over the Valuation Period multiplied by the Estimated Maturity Shares exceeds the Settlement Amount Adjustment,
Seller shall deliver to Counterparty a cash amount equal to such excess. By no later than the start of the Valuation Period, all
Maturity Shares shall be registered for resale by the Counterparty under an effective resale Registration Statement pursuant to the
Securities Act under which Seller may sell or transfer the Shares and, subject to the receipt of Seller representation letters and
such other customary supporting documentation as requested by (and in a form reasonably acceptable to) Counterparty and its counsel,
bear no restrictive legend; provided, however, that Counterparty shall not be able to pay the Settlement Amount Adjustment with Maturity
Shares if following the issuance of the Maturity Shares, Seller’s ownership of Shares would exceed 9.9% ownership of the
total Shares outstanding immediately after giving effect to such issuance unless Seller at its sole discretion waives such 9.9% ownership
limitation. To the extent that a Delisting Event occurs during the Valuation Period, the VWAP Price for the remainder of the Valuation
Period shall be deemed to be zero and any election to pay the Settlement Amount Adjustment with Maturity Shares will automatically
revert to a requirement that the Settlement Amount Adjustment be paid in cash such that any further payment that is to be made of
the Settlement Amount Adjustment as provided above shall be made by Seller in cash. |
|
|
Valuation Period: |
|
The
period commencing on the Valuation Date (or if the Valuation Date is not an Exchange Business Day, the first Exchange Business Day
thereafter) and ending at 4:00 pm on the Exchange Business Day on which 10% of the total volume traded in the Shares over the period,
excluding any volumes traded during the opening and closing auctions, has reached an amount equal to the Number of Shares outstanding
as of the Valuation Date plus the Estimated Maturity Shares, less the number of Shares owned by Seller that are neither registered
for resale under an effective resale Registration Statement nor eligible for resale under Rule 144 without volume or manner of sale
limitations (but only counting such Shares that are eligible for resale under Rule 144 to the extent the Counterparty is in compliance
with the requirements of Rule 144(i)(2) for the entire period). |
|
|
Settlement Currency: |
|
USD. |
Cash Settlement Payment
Date: |
|
The tenth Local
Business Day immediately following the last day of the Valuation Period. For the avoidance of doubt, the Seller will remit to the
Counterparty on the Cash Settlement Payment Date an amount equal to the Settlement Amount and will not otherwise be required to return
to the Counterparty any of the Prepayment Amount and the Counterparty shall remit to the Seller the Settlement Amount Adjustment;
provided, that if the Settlement Amount less the Settlement Amount Adjustment is a negative number and either clause (x) of Settlement
Amount Adjustment applies or the Counterparty has elected pursuant to clause (y) of Settlement Amount Adjustment to pay the Settlement
Amount Adjustment in cash, then neither the Seller nor the Counterparty shall be liable to the other party for any payment under
this section. |
|
|
Excess Dividend Amount: |
|
Ex Amount. |
|
|
Optional Early Termination: |
|
From time to time and on any
date following the Trade Date (any such date, an “OET Date”) and subject to the terms and conditions below, Seller
may, in its absolute discretion, terminate the Transaction in whole or in part by providing written notice to Counterparty (the “OET
Notice”), no later than the next Payment Date following the OET Date, (which shall specify the quantity by which the Number
of Shares shall be reduced (such quantity, the “Terminated Shares”)); provided that “Terminated Shares”
includes only such quantity of Shares by which the Number of Shares is to be reduced and included in an OET Notice and does not include
any other Share sales, Shortfall Sale Shares or sales of Shares that are designated as Shortfall Sales (which designation can be
made only up to the amount of Shortfall Sale Proceeds), or any other Shares, whether or not sold, which Shares will not
be included in any OET Notice or included in the definition, or when calculating the number, of Terminated Shares. The effect of
an OET Notice shall be to reduce the Number of Shares by the number of Terminated Shares specified in such OET Notice with effect
as of the related OET Date. As of each OET Date, Counterparty shall be entitled to an amount from Seller, and the Seller shall pay
to Counterparty an amount, equal to the product of (x) the number of Terminated Shares and (y) the Reset Price in respect of such
OET Date (an “Early Termination Obligation”), except that no such amount will be due to Counterparty upon any
Shortfall Sale; provided, that, Seller shall pay the Early Termination Obligation to the accounts and in the amounts as directed
by Counterparty. The remainder of the Transaction, if any, shall continue in accordance with its terms. The Early Termination Obligation
shall be payable by Seller on the first Local Business Day following the date of delivery by Seller of the OET Notice. For the avoidance
of doubt, no other amounts as may be set forth in Sections 16.1 and 18.1 of the Swap Definitions shall be due to Counterparty
upon an Optional Early Termination. The payment date may be changed within a quarter at the mutual agreement of the parties. |
|
|
Shortfall Sales: |
|
From time to time and on any
date following the Trade Date (any such date, a “Shortfall Sale Date”) and subject to the terms and conditions
below, Seller may, in its absolute discretion, (i) at any time following the Trade Date at prices greater than the Reset Price or
(ii) commencing on the 180th day following the Trade Date at any sales price, in either case sell Shortfall Sale Shares,
and in connection with such sales, Seller shall provide written notice to Counterparty (the “Shortfall Sale Notice”)
no later than the later of (a) the fifth Local Business Day following the Shortfall Sales Date and (b) the first Payment Date after
the Shortfall Sales Date, specifying the quantity of the Shortfall Sale Shares and the allocation of the Shortfall Sale Proceeds. Seller
shall not have any Early Termination Obligation in connection with any Shortfall Sales. The Counterparty covenants and agrees for
a period of at least sixty (60) Local Business Days (commencing on the Prepayment Date or if an earlier Registration Request is submitted
by Seller on the date the SEC declares the Registration Statement effective) not to issue, sell or offer or agree to sell any Shares,
or securities or debt that is convertible, exercisable or exchangeable into Shares, including under any existing or future equity
line of credit, until the Shortfall Sales equal the Prepayment Shortfall. |
Share
Registration: |
|
Within 30 days after receipt of a written
request of Seller (the “Registration Request”), which request may be made no earlier than the Trade Date (as defined
above) and no later than the Valuation Date, Counterparty shall file (at Counterparty’s sole cost and expense) with the U.S.
Securities and Exchange Commission (the “Commission”) a registration statement registering the resale of all shares
held by the Seller, including the Recycled Shares and any Additional Shares (the “Registration Statement”), and
have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earliest
of (i) the 90th calendar day (or 120th calendar day if the Commission notifies the Counterparty that it will “review”
the Registration Statement) following the date of the Registration Request (provided, however, that in the event the Commission issues
any written rules related to special purpose acquisition companies that would reasonably effect the timing of the effectiveness of
the Registration Statement and such rules become effective following the date hereof and prior to the effectiveness of the Registration
Statement, such number of calendar days in this subsection (i) shall be changed to the 120th calendar day (or 180th calendar day
if the Commission notifies the Counterparty that it will “review” the Registration Statement) and (ii) the 5th Local
Business Day after the date the Counterparty is notified (orally or in writing, whichever is earlier) by the Commission that such
Registration Statement will not be “reviewed” or will not be subject to further review (each respective date as described
above, the “Effectiveness Deadline”); provided, that (x) if such day falls on a Saturday, Sunday or other
day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the
Commission is open for business and (y) if the Commission is closed for operations due to a government shutdown, the Effectiveness
Deadline shall be extended by the same number of Business Days that the Commission remains closed for. Upon notification by the Commission
that the Registration Statement has been declared effective by the Commission, within two Local Business Days thereafter, the Counterparty
shall file the final prospectus under Rule 424 of the Securities Act of 1933, as amended containing a “plan of distribution”
reasonably agreeable to Seller.
Counterparty shall not identify Seller as
a statutory underwriter in the Registration Statement unless requested by the Commission. In the event that the SEC asks that Seller
be identified as a statutory underwriter, Seller shall have the option, in its sole discretion and without any breach of this provision
or without any Registration Failure deemed to have occur, to remove its shares from the Registration Statement. The Counterparty
will use its commercially reasonable efforts to keep the Registration Statement covering the resale of the shares as described above
continuously effective (except for customary blackout periods, up to three times per year and for a total of up to 90 calendar days
(and not more than 45 calendar days in an occurrence), if and when the Counterparty is in possession of material non-public information
the disclosure of which, in the good faith judgment of the Counterparty’s board of directors, would be prejudicial, and the
Counterparty agrees to promptly notify Seller of any such blackout determination) until all such shares have been sold or may be
transferred without any restrictions, including the requirement for the Counterparty to be in compliance with the current public
information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or the volume and manner of sale limitations under Rule
144(e), (f) and (g) under the Securities Act; provided that Counterparty covenants and agrees to make all necessary filings, amendments,
supplements and submissions in furtherance of the foregoing, including to register all of Seller’s Shares for resale; provided
further, that it shall be a “Registration Failure” if (a) the Registration Statement covering all of the shares
described above in this section is not declared effective after the 90th calendar day (or 120th calendar day if the Commission notifies
the Counterparty that it will “review” the Registration Statement) after the Trade Date (provided, however, that in the
event the Commission issues any written rules related to special purpose acquisition companies that would reasonably effect the timing
of the effectiveness of the Registration Statement and such rules become effective following the date hereof and prior to the effectiveness
of the Registration Statement, such number of calendar days in this subsection (i) shall be changed to the 120th calendar day (or
180th calendar day if the Commission notifies the Counterparty that it will “review” the Registration Statement) and
or (b) the Registration Statement after it is declared effective ceases to be continuously effective (subject to the blackout periods
as indicated above) as set forth in the preceding sentence for more than 120 consecutive calendar days; provided, that (x)
if such day falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall
be extended to the next Business Day on which the Commission is open for business and (y) if the Commission is closed for operations
due to a government shutdown, the Effectiveness Deadline shall be extended by the same number of Business Days that the Commission
remains closed for. Notwithstanding the foregoing, no Registration Failure will be deemed to have occurred with respect to any Shares
that may be transferred at such time under Rule 144 (without volume or manner of sale limitations), so long as the Counterparty is
in compliance with the requirements of Rule 144 (c)(1) and (i)(2), if applicable. |
|
|
Seller will promptly deliver customary representations
and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection with the Registration
Statement, including those related to selling stockholders, and to respond to SEC comments. If requested by Seller, the Counterparty
shall remove or instruct its transfer agent to remove any restrictive legend with respect to transfers under the Securities Act from
any and all Shares held by Seller if (1) the Registration Statement is and continues to be effective under the Securities Act, (2)
such Shares are sold or transferred pursuant to Rule 144 under the Securities Act (subject to all applicable requirements of Rule
144 being met), or (3) such Shares are eligible for sale under Rule 144, without the requirement for the Counterparty to be in compliance
with the current public information required under Rule 144(c)(1) or the volume and manner of sale limitations under Rule 144(e),
(f) and (g) under the Securities Act; provided in the case of (1), (2) or (3) that Seller shall have timely provided customary representations
and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent in connection therewith.
Any reasonable and documented fees (with respect to the transfer agent, Counterparty’s counsel or otherwise) associated with
the issuance of any legal opinion required by the Counterparty’s transfer agent or the removal of such legend shall be borne
by the Counterparty. If a legend is no longer required pursuant to the foregoing, the Counterparty will, no later than five Local
Business Days following the delivery by Seller to the Counterparty or the transfer agent (with notice to the Counterparty) of customary
representations and other documentation reasonably acceptable to the Counterparty, its counsel and/or its transfer agent, remove
the restrictive legend related to the book entry account holding the Shares and make a new, unlegended book entry for the Shares.
Notwithstanding the registration obligations
set forth in this Share Registration section, in the event the Commission informs the Counterparty that all of the Shares cannot,
as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement,
the Counterparty agrees to promptly (i) inform Seller and use its commercially reasonable efforts to file amendments to the Registration
Statement as required by the Commission and/or (ii) withdraw the Registration Statement and file a new registration statement (a
“New Registration Statement”), on Form S-3, or if Form S-3 is not then available to the Counterparty for such
registration statement, on such other form available to register for resale the Shares as a secondary offering; provided, however,
that prior to filing such amendment or New Registration Statement, the Counterparty shall use its commercially reasonable efforts
to advocate with the Commission for the registration of all of the Shares in accordance with any publicly-available written or oral
guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”). Notwithstanding any
other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of securities permitted to be registered
on a particular Registration Statement as a secondary offering (and notwithstanding that the Counterparty used commercially reasonable
efforts to advocate with the Commission for the registration of all or a greater number of the Shares), unless otherwise directed
in writing by a selling stockholder as to its securities to register fewer securities, the number of securities to be registered
on such Registration Statement will be reduced on a pro rata basis among all selling stockholders named in such Registration Statement
(except that such pro rata reduction shall not apply with respect to any securities the registration of which is necessary to satisfy
applicable listing rules of a national securities exchange). In the event the Counterparty amends the Registration Statement or files
a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Counterparty will use its commercially reasonable
efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Counterparty or to registrants
of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale that
portion of Shares that were not registered for resale on the Registration Statement, as amended, or the New Registration Statement,
and to use commercially reasonable efforts to seek effectiveness of the New Registration Statement, but in any event no later than
thirty (30) calendar days after the filing of such Registration Statement (the “Additional Effectiveness Deadline”);
provided, that the Additional Effectiveness Deadline shall be extended to ninety (90) calendar days (or one hundred twenty
(120) calendar days if the Commission notifies the Counterparty that it will “review” the New Registration Statement)
if such New Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided, further, that
the Counterparty shall have such Registration Statement declared effective within five (5) Business Days after the date the Counterparty
is notified (orally or in writing, whichever is earlier) by the staff of the Commission that such New Registration Statement will
not be “reviewed” or will not be subject to further review; provided, further, that (x) if such day falls
on a Saturday, Sunday or other day that the Commission is closed for business, the Additional Effectiveness Deadline shall be extended
to the next Business Day on which the Commission is open for business and (y) if the Commission is closed for operations due to a
government shutdown, the Additional Effectiveness Deadline shall be extended by the same number of Business Days that the Commission
remains closed for. For the avoidance of doubt, any such amendments to or withdrawal of the Registration Statement or filing of the
New Registration Statement shall not constitute a Registration Failure. |
Share Adjustments: |
|
|
|
|
Method of Adjustment: |
|
Calculation Agent Adjustment. |
|
|
Extraordinary Events: |
|
|
|
|
Consequences of Merger Events involving Counterparty: |
|
|
|
|
Share-for-Share: |
|
Calculation Agent Adjustment. |
|
|
Share-for-Other: |
|
Cancellation and Payment. |
|
|
Share-for-Combined: |
|
Component Adjustment. |
|
|
Tender Offer: |
|
Applicable; provided, however, that Section
12.1(d) of the Equity Definitions is hereby amended by (i) replacing the reference therein to “10%” with “25%”
and (ii) adding “, or of the outstanding Shares,” before “of the Issuer” in the fourth line thereof. Sections
12.1(e) and 12.1(l)(ii) of the Equity Definitions are hereby amended by adding “or Shares, as applicable,” after “voting
Shares”. |
|
|
Consequences of Tender Offers: |
|
|
|
|
Share-for-Share: |
|
Calculation Agent Adjustment. |
|
|
Share-for-Other: |
|
Calculation Agent Adjustment. |
|
|
Share-for-Combined: |
|
Calculation Agent Adjustment. |
|
|
Composition of Combined Consideration: |
|
Not Applicable. |
|
|
Nationalization, Insolvency or Delisting: |
|
Cancellation and Payment (Calculation Agent Determination);
provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting
if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the
New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, Nasdaq Capital Market or the Nasdaq Global Market (or
their respective successors) or such other exchange or quotation system which, in the determination of the Calculation Agent, has
liquidity comparable to the aforementioned exchanges; if the Shares are immediately re-listed, re-traded or re-quoted on any such
exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange. |
|
|
Purchase & Sale Exclusion: |
|
Notwithstanding the foregoing or any other provision
herein, the parties agree that neither any PIPE financing in connection with the Purchase & Sale nor the Purchase & Sale
shall not constitute a Merger Event, Tender Offer, Delisting or any other Extraordinary Event hereunder. |
Additional
Disruption Events: |
|
|
|
|
(a) Change in Law: |
|
Applicable; provided that
Section 12.9(a)(ii) of the Equity Definitions is hereby amended by adding the words “(including, for the avoidance of doubt
and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” after the
word “regulation” in the second line thereof. |
|
|
(b) Failure to Deliver: |
|
Not Applicable. |
|
|
(c) Insolvency Filing: |
|
Applicable. |
|
|
(d) Hedging Disruption: |
|
Not Applicable. |
|
|
(e) Increased Cost of Hedging: |
|
Not Applicable. |
|
|
(f) Loss of Stock Borrow: |
|
Not Applicable. |
|
|
(g) Increased Cost of Stock Borrow: |
|
Not Applicable. |
|
|
Determining Party: |
|
For all applicable events,
Seller, unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect
to Seller, or (ii) if Seller fails to perform its obligations as Determining Party, in which case a Third Party Dealer (as defined
below) in the relevant market selected by Counterparty will be the Determining Party. When making any determination or calculation
as “Determining Party”, Seller shall be bound by the same obligations relating to required acts of the Calculation Agent
as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if Determining Party were the Calculation Agent. |
|
|
Additional Provisions: |
|
|
|
|
Calculation Agent: |
|
Seller, unless (i) an Event
of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect to Seller, or (ii) if Seller
fails to perform its obligations as Calculation Agent, in which case an unaffiliated leading dealer in the relevant market selected
by Counterparty in its sole discretion will be the Calculation Agent. |
|
|
|
|
In the event that a party (the “Disputing Party”) does
not agree with any determination made (or the failure to make any determination) by the Calculation Agent or the Determining Party,
the Disputing Party shall have the right to require that the Calculation Agent or the Determining Party, as applicable, have such
determination reviewed by a disinterested third party that is a dealer in derivatives of the type that is the subject of the dispute
and that is not an Affiliate of either party (a “Third Party Dealer”). Such Third Party Dealer shall be jointly
selected by the parties within one Local Business Day after the Disputing Party’s exercise of its rights hereunder (once selected,
such Third Party Dealer shall be the “Substitute Calculation Agent” or “Substitute Determining Party,”
as applicable). If the parties are unable to agree on a Substitute Calculation Agent or Substitute Determining Party, as applicable,
within the prescribed time, each of the parties shall elect a Third Party Dealer and such two dealers shall agree on a Third Party
Dealer by the end of the subsequent Local Business Day. Such Third Party Dealer shall be deemed to be the Substitute Calculation
Agent or Substitute Determining Party, as applicable. Any exercise by the Disputing Party of its rights hereunder must be in writing
and shall be delivered to the Calculation Agent or Determining Party, as applicable, not later than the third Local Business Day
following the Local Business Day on which the Calculation Agent or Determining Party, as applicable, notifies the Disputing Party
of any determination made (or of the failure to make any determination). Any determination by the Substitute Calculation Agent or
Substitute Determining Party, as applicable, shall be binding in the absence of manifest error and shall be made as soon as possible
but no later than the second Local Business Day following the Substitute Calculation Agent’s or Substitute Determining Party’s,
appointment, as applicable. The costs of such Substitute Calculation Agent or Substitute Determining Party, as applicable, shall
be borne by (a) the Disputing Party if the Substitute Calculation Agent or Substitute Determining Party, as applicable, substantially
agrees with the Calculation Agent or Determining Party, or (b) the non-Disputing Party if the Substitute Calculation Agent or Substitute
Determining Party, as applicable, does not substantially agree with the Calculation Agent or Determining Party, as applicable. If,
after following the procedures and within the specified time frames set forth above, a binding determination is not achieved, the
original determination of the Calculation Agent or Determining Party, as applicable, shall apply. |
|
|
Following any adjustment, determination or
calculation by the Calculation Agent hereunder, upon a written request by Counterparty (which may be by email), the Calculation Agent
will promptly (but in any event within five Exchange Business Days) provide to Counterparty by email to the email address provided
by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data)
displaying in reasonable detail the basis for such adjustment, determination or calculation (including any quotations, market data
or information from internal or external sources, and any assumptions used in making such adjustment, determination or calculation),
it being understood that in no event will the Calculation Agent be obligated to share with Counterparty any proprietary or confidential
data or information or any proprietary or confidential models used by it in making such adjustment, determination or calculation
or any information that is subject to an obligation not to disclose such information. All calculations and determinations by the
Calculation Agent shall be made in good faith and in a commercially reasonable manner. |
|
|
Non-Reliance: |
|
Applicable. |
|
|
Agreements and Acknowledgements
Regarding Hedging Activities: |
|
Applicable. |
|
|
Additional Acknowledgements: |
|
Applicable. |
|
|
Schedule Provisions: |
|
|
|
|
Specified Entity: |
|
In relation
to both Seller and Counterparty for the purpose of: |
|
|
Section
5(a)(v), Not Applicable |
|
|
Section
5(a)(vi), Not Applicable |
|
|
Section
5(a)(vii), Not Applicable |
|
|
Cross-Default: |
|
The “Cross-Default”
provisions of Section 5(a)(vi) of the ISDA Form will not apply to either party. |
|
|
Credit Event Upon Merger: |
|
The “Credit
Event Upon Merger” provisions of Section 5(b)(v) of the ISDA Form will not apply to either party. |
|
|
Automatic Early Termination: |
|
The “Automatic
Early Termination” of Section 6(a) of the ISDA Form will not apply to either party. |
|
|
Other Events of Early Termination |
|
Notwithstanding
anything to the contrary herein, in the Definitions or in the ISDA Form, if the Purchase & Sale does not close and the Shares
are redeemed pursuant to a SPAC liquidation and Reimbursement, this Transaction shall automatically terminate as of the time when
redemptions are first effected without any amounts or other obligations being owed by either party to the other hereunder except
for the payment by Counterparty to Seller of any amounts owing pursuant to “Reimbursement of Legal Fees and Other Expenses”
herein. |
Termination Currency: |
|
United
States Dollars. |
|
|
Additional Termination Events: |
|
Will apply to Seller. The occurrence of any
of the following events, and only these events, shall constitute an Additional Termination Event in respect of which Seller shall
be the Affected Party.
(a) The
Transaction Agreement is terminated pursuant to its terms prior to the closing of the Purchase & Sale;
(b) A
material and uncured breach of the PIPE Subscription Agreement by Counterparty;
(c) If
it is, or, as a consequence of a change in law, regulation or interpretation, it becomes or will become, unlawful for the Seller
to perform any of its obligations contemplated by the Transaction; and
Notwithstanding anything to the contrary
herein, in the Definitions or in the ISDA Form, if an Early Termination Date is designated as a result of an Additional Termination
Event, then this Transaction will terminate as of such Early Termination Date without any amounts or other obligations being owed
by either party to the other hereunder.
Notwithstanding the foregoing, Counterparty’s
obligations set forth under the captions, “Reimbursement of Legal Fees and Other Expenses,” and “Other Provisions
— (d) Indemnification” shall survive any termination due to the occurrence of either of the foregoing Additional Termination
Events. |
|
|
Governing Law: |
|
New York law (without reference
to choice of law doctrine other than Sections 5-1401 and 5-1402 of the General Obligations Law). |
|
|
Credit Support Provider: |
|
With respect to Seller and
Counterparty, None. |
|
|
Local Business Days: |
|
Seller specifies the following
places for the purposes of the definition of Local Business Day as it applies to it: New York. Counterparty specifies the following
places for the purposes of the definition of Local Business Day as it applies to it: New York. |
Representations, Warranties and Covenants
1. |
Each of Counterparty and Seller represents
and warrants to, and covenants and agrees with, the other as of the date on which it enters into the Transaction that (in the absence
of any written agreement between the parties that expressly imposes affirmative obligations to the contrary for the Transaction)
as follows. |
(a) |
Non-Reliance. It is acting for its own
account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate
or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on
any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction,
it being understood that information and explanations related to the terms and conditions of the Transaction will not be considered
investment advice or a recommendation to enter into the Transaction. No communication (written or oral) received from the other party
will be deemed to be an assurance or guarantee as to the expected results of the Transaction. |
(b) |
Assessment and Understanding. It is
capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands
and accepts, the terms, conditions and risks of the Transaction. It is also capable of assuming, and assumes, the risks of the Transaction.
|
(c) |
Non-Public Information. It is in compliance
with Section 10(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
(d) |
Tender Offer Rules. Counterparty
and Seller each acknowledge that the Transaction has been structured, and all activity in connection with the Transaction has been
undertaken to comply with the requirements of all tender offer regulations applicable to the Purchase & Sale, including Rule
14e-5 under the Exchange Act. |
(e) |
Authorization. The Transaction, including
this Confirmation, has been entered into pursuant to authority granted by its board of directors or other governing authority. It
has no internal policy, whether written or oral, that would prohibit it from entering into any aspect of the Transaction, including,
but not limited to, the purchase of Shares to be made in connection therewith. |
(f) |
Enforceability. The Transaction, including
the Confirmation, when executed and delivered by each of the parties, will constitute the valid and legally binding obligation of
each such party, enforceable against each of them in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’
rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies. |
(g) |
Compliance with Other Instruments and Law.
The execution, delivery and performance of this Transaction, including the Confirmation, and the consummation of the Transaction,
will not result in any violation or default (i) of any provisions of its organizational documents, (ii) of any instrument, judgment,
order, writ or decree to which it is a party or by which it is bound, (iii) under any note, indenture or mortgage to which it is
a party or by which it is bound, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it
is bound or (v) of any provision of any applicable federal or state statute, rule or regulation, in each case (other than clause
(i)), which would have a material adverse effect on it or its ability to consummate the Transaction. |
(h) |
Affiliate Status. It is the intention
of the parties hereto that Seller shall not be an “affiliate” (as such term is defined in Rule 405 under the Securities
Act) of Target or HNRA, following the closing of the Purchase & Sale, as a result of the transactions contemplated hereunder.
|
2. |
Counterparty represents and warrants to, and covenants
and agrees with, Seller as of the date on which it enters into the Transaction, that: |
(a) |
Total Assets. HNRA has as of the date
hereof, and expects to have as of the closing of the Purchase & Sale, after giving effect to this transaction and other contemplated
transactions, total assets of at least USD $5,000,001, which are, for the avoidance of doubt, measured on a consolidated basis. Additionally,
Counterparty shall publicly disclose on a Form 8-K prior to the closing of the Purchase & Sale the cash balance of the Trust
Account available to pay redemptions, as of the business day immediately prior to the date of filing of such Form 8-K. Furthermore,
Counterparty will have, immediately following the Closing of the Purchase & Sale, at least $20 million of cash, net of transaction
expenses payable at closing and other accounts payable (but without deduction for other accrued liabilities, including any deferred
transaction expenses). |
(b) |
Non-Reliance. Without limiting the generality
of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Seller is not making any representations or warranties
or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards. |
(c) |
Solvency. Counterparty is, and shall
be as of the date of any payment or delivery by Counterparty under the Transaction, solvent and able to pay its debts as they come
due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the businesses in which it
engages. Counterparty: (i) has not engaged in and will not engage in any business or transaction after which the property
remaining with it will be unreasonably small in relation to its business (ii) has not incurred and will not incur debts (exclusive
of any expenses, payables or liabilities incurred in the ordinary course of business), and (iii) as a result of entering into and
performing its obligations under the Transaction, (a) it has not violated and will not violate any relevant state law provision applicable
to the acquisition or redemption by an issuer of its own securities and (b) Counterparty would not be nor would it be rendered “insolvent”
(as such term is defined under Section 101(32) of the Bankruptcy Code or under any other applicable local insolvency regime). In
addition, the outstanding amounts owed to service providers in connection with the Purchase & Sale due in the 364 calendar
days following closing of the Purchase & Sale shall not exceed cash on balance of HNRA at closing. |
(d) |
Public Reports. As of the Trade Date,
Counterparty is in material compliance with its reporting obligations under the Exchange Act, and all reports and other documents
filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act, when considered as a whole (with
the most recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents),
do not contain any untrue statement of a material fact or any omission of 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. |
(e) |
No Distribution. Except with respect
to any Shares that may be offered and sold pursuant to the Registration Statement, Counterparty is not entering into the Transaction
to facilitate a distribution of the Shares (or any security that may be converted into or exercised or exchanged for Shares, or whose
value under its terms may in whole or in significant part be determined by the value of the Shares) or in connection with any future
issuance of securities. |
(f) |
SEC Documents. The Counterparty shall
comply with the Securities and Exchange Commission’s guidance, including Compliance and Disclosure Interpretation No. 166.01,
for all relevant disclosure in connection with this Confirmation and the Transaction, and will not file with the Securities and Exchange
Commission any Form 8-K (or Form 6-K (if applicable), Registration Statement on Form S-4 (or Form F-4 (if applicable)), including
any post-effective amendment thereof, proxy statement, or other document that includes any disclosure regarding this Confirmation
or the Transaction without consulting with and reasonably considering any comments received from Seller, provided that, no consultation
shall be required with respect to any subsequent disclosures that are substantially similar to prior disclosures by Counterparty
that were reviewed by Seller; provided that the filing date of the Form 8-K that initially announces the Transaction shall be filed
at least two Local Business Days prior to the Closing Date. |
(g) |
Waiver. The Counterparty shall waive
any violation of its “bulldog clause,” as set forth in the Certificate of Incorporation, and any other restrictions that
would be caused by Seller entering into this Transaction. |
(h) |
Disclosure. The Counterparty agrees
to comply with applicable SEC guidance in respect of disclosure and the Counterparty shall preview with Seller all public disclosure
relating to the Transaction and shall consult with Seller to ensure that such public disclosure, including the press release, Form
8-K or other filing that announces the Transaction adequately discloses the material terms and conditions of the Transaction and
all material non-public information disclosed to Seller in connection with the Transaction, in form and substance reasonably acceptable
to Seller, and shall be publicly filed no later than two Local Business Days prior to the Closing Date. |
(i) |
Listing. The Counterparty agrees to
use its commercially reasonable efforts to maintain the listing of HNRA’s Class A common shares on a national securities exchange;
provided that if such shares cease to be listed on a national securities exchange or upon the filing of a Form 25 (and, in each case,
if the Counterparty fails to relist on such national securities exchange or list on a different national securities exchange within
10 calendar days) (following such 10 calendar day period, each a “Delisting Event”), Seller may accelerate the
Valuation Date under this Confirmation by delivering notice to the Counterparty and shall be entitled to the Legal Fees and Other
Expenses, which shall be due and payable immediately following the Valuation Date. |
(j) |
Regulatory Filings. Counterparty covenants
that it will make all regulatory filings that it is required by law or regulation to make with respect to the Transaction. |
(k) |
Regulation M and Approvals. Counterparty
is not on the Trade Date and agrees and covenants that it will not be on any date Seller
is purchasing shares that may be included in a Pricing Date Notice, engaged or engaging in a distribution, as such term is used in
Regulation M under the Exchange Act, of any securities of Counterparty, other than a distribution meeting the requirements of the
exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation M. Counterparty shall not, until
the second scheduled trading day immediately following dates referenced in the preceding sentence, engage in any such distribution. |
(l) |
Investment Company Act. It is
not and, after giving effect to the Transaction, will not be required to register as an “investment company” under, and
as such term is defined in, the Investment Company Act of 1940, as amended. |
(m) |
Lock-Up Provision. The
shares purchased pursuant to the PIPE Subscription Agreement shall not be subject to any lock-up. |
| 3. | Seller represents and
warrants to, and covenants and agrees with, Counterparty as of the date on which
it enters into the Transaction, that: |
| (a) | Regulatory Filings.
Seller will make all regulatory filings that it is required by law or regulation to make
with respect to the Transaction including, without limitation, as may be required by Section 13
or Section 16 (if applicable) under the Exchange Act and, assuming the accuracy of Counterparty’s
Repurchase Notices (as described under “Repurchase Notices” below) any sales
of the Recycled Shares and the Additional Shares will be in compliance therewith. |
| (b) | Eligible Contract
Participant. Seller is an “eligible contract participant” under, and
as defined in, the Commodity Exchange Act (7 U.S.C. § 1a(18)) and CFTC regulations (17
CFR § 1.3). |
| (c) | Tax Characterization.
Seller shall treat the Transaction as a derivative financial contract for U.S. federal income
tax purposes, and it shall not take any action or tax return filing position contrary to
this characterization, except to the extent otherwise required by a “determination”
within the meaning of Section 1313 of the Internal Revenue Code of 1986, as amended, or any
similar provision of state, local or foreign law. |
| (d) | Private Placement.
Seller (i) is an “accredited investor” as such term is defined in Regulation
D as promulgated under the Securities Act, (ii) is entering into the Transaction for its
own account without a view to the distribution or resale thereof and (iii) understands that
the assignment, transfer or other disposition of the Transaction has not been and will not
be registered under the Securities Act. |
Transactions by Seller in the Shares
(a) |
Seller hereby waives the redemption rights (“Redemption
Rights”) set forth in the Certificate of Incorporation in connection with the Purchase & Sale with respect to the Recycled
Shares and the Additional Shares only during the term of this Confirmation. Subject to any restrictions set forth in this Confirmation,
Seller may sell or otherwise transfer, loan or dispose of any of the Shares or any other shares or securities of the Counterparty
in one or more public or private transactions at any time. Any Recycled Shares that are not Shortfall Sale Shares and Additional
Shares sold by Seller during the term of the Transaction and included on an OET Notice will cease to be included in the Number of
Shares. |
(b) |
Unless specified in an OET Notice (or Shortfall Sale
Notice pursuant to the section entitled Shortfall Sales), no sale of Shares by Seller shall terminate all or any portion of this
Confirmation and provided that Seller complies with all of its other obligations hereunder nothing contained herein shall limit any
of Seller’s purchases and sales of Shares. |
Trust Account Waiver
Seller hereby waives any and all right, title
and interest, or any claim of any kind they have or may have during the term of this Confirmation, in or to any monies held in the Counterparty’s
Trust Account and agrees not to seek recourse against the Trust Account in each case, as a result of, or arising out of, this Transaction;
provided, however, that nothing herein shall (x) serve to limit or prohibit Seller’s right to pursue a claim against the Counterparty
for legal relief against assets held outside the Trust Account, for specific performance or other equitable relief, (y) serve to limit
or prohibit any claims that the Seller may have in the future against the Counterparty’s assets or funds that are not held in the
Trust Account (including any funds that have been released from the Trust Account and any assets that have been purchased or acquired
with any such funds), (z) be deemed to limit Seller’s right, title, interest or claim to the Trust Account by virtue of such Seller’s
record or beneficial ownership of securities of the Counterparty acquired by any means other than pursuant to this Transaction or (aa)
serve to limit Seller’s redemption right with respect to any such securities of the Seller other than during the term of the Confirmation.
No Arrangements
Seller and Counterparty each
acknowledge and agree that: (i) there are no voting, hedging or settlement arrangements between Seller and Counterparty
with respect to any Shares of the Counterparty, other than those set forth herein; (ii) Seller may hedge its risk
under the Transaction in any way Seller determines (that does not otherwise violate the terms of this Confirmation), provided that
Seller has no obligation to hedge with the purchase, sale or maintenance of any Shares or otherwise; (iii) Counterparty
will not be entitled to any voting rights in respect of any of the Shares underlying the Transaction; and (iv) Counterparty
will not seek to influence Seller with respect to the voting or disposition of any Shares.
Wall Street Transparency and Accountability
Act
In connection with Section 739 of the Wall Street
Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of WSTAA
or any regulation under WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, nor any similar legal certainty provision
in any legislation enacted, or rule or regulation promulgated, on or after the date of this Confirmation, shall limit or otherwise impair
either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the ISDA
Form, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event
under this Confirmation, the Equity Definitions incorporated herein, or the ISDA Form.
Address for Notices
Notice to Seller:
Meteora Capital, LLC
1200 N Federal Hwy, Ste 200
Boca Raton, FL 33432
Email: notices@meteoracapital.com
With a copy (which shall not constitute notice)
to:
DLA Piper LLP (US)
555 Mission Street, Suite 2400
San Francisco, CA 94105-2933
Attention: Jeffrey C. Selman
Email: jeffrey.selman@us.dlapiper.com
Notice to Counterparty:
HNR Acquisition Corp
3730 Kirby Drive, Suite 1200
Houston, Texas 77098
Attention: Mitchell B. Trotter, CFO
Email: mbtrotter@comcast.net
With a copy to:
Pryor Cashman LLP
7 Times Square
New York, New York 10036
Attention Matthew Ogurick
Email: mogurick@pryorcashman.com
HNR Acquisition Corp
3730 Kirby Drive, Suite 1200
Houston, Texas 77098
Attention: David M. Smith, General Counsel
Email: dmsmith@hnra-nyse.com
Other Provisions.
|
(i) |
Counterparty represents and warrants
to Seller that Counterparty is not entering into the Transaction to create actual or apparent trading activity in the Shares (or
any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares
(or any security convertible into or exchangeable for the Shares) for the purpose of inducing the purchase or sale of such securities
or otherwise in violation of the Exchange Act, and Counterparty represents and warrants to Seller that Counterparty has not entered
into or altered, and agrees that Counterparty will not enter into or alter, any corresponding or hedging transaction or position
with respect to the Shares. |
|
(ii) |
Counterparty agrees that it will
not seek to control or influence Seller’s decision to make any “purchases or sales” under the Transaction, including,
without limitation, Seller’s decision to enter into any hedging transactions. Counterparty represents and warrants that it
has consulted with its own advisors as to the legal aspects of its adoption and implementation of this Confirmation and the Transaction
under the federal securities laws, including without limitation, the prohibitions on manipulative and deceptive devices under the
Exchange Act. |
|
(iii) |
Counterparty acknowledges and
agrees that any amendment, modification, waiver or termination of this Confirmation must be effected in accordance with the requirements
for the amendment or termination of a written trading plan for trading securities. Without limiting the generality of the foregoing,
Counterparty acknowledges and agrees that any such amendment, modification, waiver or termination shall be made in good faith and
not as part of a plan or scheme to evade compliance with the federal securities laws, including without limitation the prohibition
on manipulative and deceptive devises under the Exchange Act and no such amendment, modification or waiver shall be made at any time
at which Counterparty or any officer, director, manager or similar person of Counterparty is aware of any material non-public information
regarding Counterparty or the Shares. |
(b) |
Repurchase Notices. Counterparty shall,
on any day on which Counterparty effects any repurchase of Shares (other than in connection with a Counterparty equity compensation
program (e.g., to fund taxes in connection with vested RSUs)), promptly give Seller a written notice of such repurchase (a “Repurchase
Notice”), if following such repurchase, the number of outstanding Shares as determined on such day is (i) less than the
number of Shares outstanding that would result in the percentage of total Shares outstanding represented by the number of Shares
underlying the Transaction increasing by 0.10% (in the case of the first such notice) or (ii) thereafter more than the number of
Shares that would need to be repurchased to result in the percentage of total Shares outstanding represented by the number of Shares
underlying the Transaction increasing by a further 0.10% less than the number of Shares included in the immediately preceding Repurchase
Notice; provided that Counterparty agrees that this information does not constitute material non-public information; provided further
if this information shall be material non-public information, it shall publicly disclosed immediately. Counterparty agrees to indemnify
and hold harmless Seller and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and
controlling persons (each, an “Indemnified Person”) from and against any and all losses (including losses relating
to Seller’s hedging activities as a consequence of remaining or becoming a Section 16 “insider” following the closing
of the Purchase & Sale, including without limitation, any forbearance from hedging activities or cessation of hedging activities
and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and reasonable and
documented out-of-pocket expenses (including reasonable and documented attorney’s fees), joint or several, which an Indemnified
Person may become subject to, as a result of Counterparty’s failure to provide Seller with a Repurchase Notice on the day and
in the manner specified in this paragraph, and to reimburse each of such Indemnified Persons for any reasonable and documented legal
or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with
or defending any of the foregoing; provided, however, for the avoidance of doubt, Counterparty has no indemnification or other obligations
with respect to Seller becoming a Section 16 “insider” prior to the closing of the Purchase & Sale. If any suit,
action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against
the Indemnified Person as a result of Counterparty’s failure to provide Seller with a Repurchase Notice in accordance with
this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others
Counterparty may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding. Counterparty
shall not be liable for any settlement of any proceeding contemplated by this paragraph that is effected without its written consent,
but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not, without the prior
written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding contemplated by this paragraph
that is in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification
provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The
remedies provided for in this paragraph are not exclusive and shall not limit any rights or remedies which may otherwise be available
to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain
operative and in full force and effect regardless of the termination of the Transaction. |
(c) |
Transfer or Assignment. Prior
to the closing of the Purchase & Sale, the Seller may freely assign or transfer rights and duties under this Confirmation in
whole or in part to any third party without the Counterparty’s consent. Following the closing of the Purchase & Sale, the
rights and duties under this Confirmation may not be transferred or assigned by any party hereto without the prior written consent
of the other party, such consent not to be unreasonably withheld, subject to the immediately following sentence. If at any time following
the closing of the Purchase & Sale at which (A) the Section 16 Percentage exceeds 9.9%, or (B) the Share Amount exceeds the Applicable
Share Limit, if any applies (any such condition described in clause (A) or (B), an “Excess Ownership Position”),
Seller is unable to effect a transfer or assignment of a portion of the Transaction to a third party on pricing terms reasonably
acceptable to Seller and within a time period reasonably acceptable to Seller such that no Excess Ownership Position exists, then
Seller may designate any Local Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated
Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Seller so
designates an Early Termination Date with respect to a portion of the Transaction, a portion of the Shares with respect to the Transaction
shall be delivered to Counterparty as if the Early Termination Date was the Valuation Date in respect of a Transaction having terms
identical to the Transaction and a Number of Shares equal to the number of Shares underlying the Terminated Portion. The “Section
16 Percentage” as of any day is the fraction, expressed as a percentage, as determined by Seller, (A) the numerator of
which is the number of Shares that Seller and each person subject to aggregation of Shares with Seller under Section 13 or Section
16 of the Exchange Act and rules promulgated thereunder and all persons who may form a “group” (within the meaning of
Rule 13d-5(b)(1) of the Exchange Act) with Seller directly or indirectly beneficially own (as defined under Section 13 or Section
16 of the Exchange Act and rules promulgated thereunder) (the “Seller Group” ) and (B) the denominator of which
is the number of Shares outstanding.
The “Share Amount” as
of any day is the number of Shares that Seller and any person whose ownership position would be aggregated with that of Seller and
any group (however designated) of which Seller is a member (Seller or any such person or group, a “Seller Person”)
under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case,
applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls,
holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by
Seller in its sole discretion.
The “Applicable Share Limit”
means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting (other than on Schedule 13D
or 13G) or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Seller
Person, or could result in an adverse effect on a Seller Person, under any Applicable Restriction, as determined by Seller in its
sole discretion, minus (B) 0.1% of the number of Shares outstanding. |
(d) |
Indemnification. Counterparty agrees
to indemnify and hold harmless each Indemnified Person from and against any and all losses (but not including financial losses to
an Indemnified Person relating to the economic terms of the Transaction provided that the Counterparty performs its obligations under
this Confirmation in accordance with its terms), claims, damages and liabilities (or actions in respect thereof) expenses (including
reasonable attorney’s fees), joint or several, incurred by or asserted against such Indemnified Person arising out of, in connection
with, or relating to, and to reimburse, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection
with investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising
out of any action between any of the Indemnified Parties and the Counterparty or between any of the Indemnified Parties and any third
party, or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange Act or any other statute
or at common law or otherwise or under the laws of foreign countries, arising out of or based upon the Transaction, including the
execution or delivery of this Confirmation, the performance by Counterparty of its obligations under the Transaction, any material
breach of any covenant, representation or warranty made by Counterparty in this Confirmation or the ISDA Form, regulatory
filings and submissions made by or on behalf of the Counterparty related to the Transaction (other than as relates to any information
provided in writing by or on behalf of Seller or its affiliates), or the consummation of the transactions contemplated hereby, including
the Registration Statement or any untrue statement or alleged untrue statement of a material fact contained in any registration statement,
press release, filings or other document, or the omission or alleged omission therefrom of 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.
Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability
or expense is related to the manner in which Seller sells, or arising out of any sales by Seller of, any Shares, including the Recycled
Shares or found in a nonappealable judgment by a court of competent jurisdiction to have resulted from Seller’s material breach
of any covenant, representation or other obligation in this Confirmation or the ISDA Form or from Seller’s willful misconduct,
bad faith or gross negligence in performing the services that are subject of the Transaction. If for any reason the foregoing indemnification
is unavailable to any Indemnified Person or insufficient to hold harmless any Indemnified Person, then Counterparty shall contribute,
to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Person as a result of such loss, claim,
damage or liability. In addition (and in addition to any other Reimbursement of Legal Fees and other Expenses contemplated by this
Confirmation), Counterparty will reimburse any Indemnified Person for all reasonable, out-of-pocket, expenses (including reasonable
counsel fees and expenses) in connection with the investigation of, preparation for or defense or settlement of any pending or threatened
claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Person is a party thereto and whether
or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty also agrees that
no Indemnified Person shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty
in connection with or as a result of any matter referred to in this Confirmation except to the extent that any losses, claims, damages,
liabilities or expenses incurred by Counterparty result from such Indemnified Person’s breach of any covenant, representation
or other obligation in this Confirmation or the ISDA Form or from the gross negligence, willful misconduct or bad faith of the Indemnified
Person or breach of any U.S. federal or state securities laws or the rules, regulations or applicable interpretations of the Commission.
The provisions of this paragraph shall survive the completion of the Transaction contemplated by this Confirmation and any assignment
and/or delegation of the Transaction made pursuant to the ISDA Form or this Confirmation shall inure to the benefit of any permitted
assignee of Seller. |
(e) |
Amendments to Equity Definitions. |
|
(i) |
Section 12.6(a)(ii) of the Equity
Definitions is hereby amended by (i) deleting from the fourth line thereof the word “or” after the word “official”
and inserting a comma therefor, and (ii) deleting the semi-colon at the end of subsection (B) thereof and inserting the following
words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Form with
respect to that Issuer.”; and |
|
(ii) |
Section 12.6(c)(ii) of the Equity
Definitions is hereby amended by replacing the words “the Transaction will be cancelled,” in the first line with the
words “Seller will have the right, which it must exercise or refrain from exercising, as applicable, in good faith acting in
a commercially reasonable manner, to cancel the Transaction,”; |
(f) |
Waiver of Jury Trial. Each party waives,
to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding
relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of either party has represented,
expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing
waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among
other things, the mutual waivers and certifications provided herein. |
(g) |
Attorney and Other Fees. Subject to
clause (d) Indemnification (above), in the event of any legal action initiated by any party arising under or out of, in connection
with or in respect of, this Confirmation or the Transaction, the prevailing party shall be entitled to reasonable and documented
attorneys’ fees, costs and expenses incurred in such action, as determined and fixed by the court. |
(h) |
Tax Disclosure. Effective from the date
of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents
may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all
materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment
and tax structure. |
(i) |
Securities Contract; Swap Agreement.
The parties hereto intend for (i) the Transaction to be (a) a “securities contract” as defined in the Bankruptcy Code,
in which case each payment and delivery made pursuant to the Transaction is a “termination value,” “payment amount”
or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment,”
within the meaning of Section 546 of the Bankruptcy Code, and (b) a “swap agreement” as defined in the Bankruptcy Code,
with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment
amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,”
as such term is defined in Section 101(54) of the Bankruptcy Code and a “payment or other transfer of property” within
the meaning of Sections 362 and 546 of the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by,
among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right
to liquidate, terminate and accelerate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default
under the ISDA Form with respect to the other party to constitute a “contractual right” as described in the Bankruptcy
Code, and (iii) each payment and delivery of cash, securities or other property hereunder to otherwise constitute a “margin
payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code. |
(j) |
Process Agent. For the purposes of Section
13(c) of the ISDA Form: |
Seller appoints as its Process Agent: None
Counterparty appoints as its Process Agent: None.
[Signature page follows]
Please confirm that the
foregoing correctly sets forth the terms of our agreement by executing a copy of this Confirmation and returning it to us at your earliest
convenience.
|
Very truly yours, |
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METEORA CAPITAL
PARTNERS, LP;
METEORA SELECT TRADING OPPORTUNITIES MASTER, LP; and METEORA STRATEGIC CAPITAL, LLC |
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By: |
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Name: |
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Title: |
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Subscriber |
|
Percentage
of Maximum Number of Shares |
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(Signature Page to Forward
Share Purchase Agreement)
Agreed and accepted by:
HNR ACQUISITION
CORP. |
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By: |
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Name: |
Mitchell B. Trotter |
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Title: |
Chief Financial Officer |
|
(Signature Page to Forward
Share Purchase Agreement)
SCHEDULE A
FORM OF PRICING DATE NOTICE
Date: [●], 2023
To: HNR Acquisition Corp (“Counterparty”)
Address: 3730 Kirby Drive, Suite 1200, Houston,
Texas 77098
Phone: (713) 834-1145
From:
Re: OTC Equity Prepaid Forward Transaction
1. This Pricing Date Notice supplements, forms
part of, and is subject to the Confirmation Re: OTC Equity Prepaid Forward Transaction dated as of [●] (the “Confirmation”)
between Counterparty and Seller, as amended and supplemented from time to time. All provisions contained in the Confirmation govern this
Pricing Date Notice except as expressly modified below.
2. The purpose of this Pricing Date Notice is
to confirm certain terms and conditions of the Transaction entered into between Seller and Counterparty pursuant to the Confirmation.
Pricing Date: [●], 2023
Number of Recycled Shares: [●]
Number of Additional Shares: [●]
Number of Shares: [●]
Exhibit
10.2
Execution
Version
SUBSCRIPTION
AGREEMENT
This
SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on November 2, 2023, by and between HNR Acquisition
Corp, a Delaware corporation (the “Company”), and the undersigned subscriber (“Subscriber”).
WHEREAS,
in connection with the transactions contemplated by the Membership Interest Purchase Agreement, dated as of December 27, 2022, as
amended and restated on August 28, 2023 (as may be further amended or restated from time to time, the “Transaction
Agreement”), CIC Pogo LP, a Delaware limited partnership (“CIC”), DenCo Resources, LLC, a Texas limited
liability company (“DenCo”), Pogo Resources Management, LLC, a Texas limited liability company (“Pogo
Management”), 4400 Holdings, LLC, a Texas limited liability company (“4400” and, together with CIC,
DenCo and Pogo Management, collectively, “Target”) shall sell, assign, and convey to Company, and Company shall
purchase and accept from Target, effective as of the Effective Time (as defined in the Transaction Agreement), the Target Interests
(as defined in the Transaction Agreement, and such transaction the “Purchase & Sale”). The Purchase &
Sale and the other transactions contemplated by the Transaction Agreement, collectively, the
“Transactions”;
WHEREAS,
prior to the consummation of the Purchase & Sale, certain stockholders of the Company may elect to redeem public shares of the Company’s
common stock, par value $0.0001 per share (the “Common Stock”), in connection with the special meeting of the stockholders
of the Company to vote on the proposals relating to the Purchase & Sale set forth in the proxy statement on Schedule 14A(the “Proxy
Statement”) filed with the U.S. Securities and Exchange Commission on October 13, 2023 (the “Commission”)
(the total number of shares of Common Stock that are irrevocably and validly elected to be redeemed, the “Redeemed Shares”);
WHEREAS,
pursuant to Certificate of Incorporation, effective as of February 10, 2022, as amended from time to time (the “Charter”),
and as will be set forth in the Proxy Statement, the Company is, subject to certain exceptions, obligated to redeem (the “Redemption
Obligation”) such Redeemed Shares from the Trust Account (as defined below) and pay for such Redeemed Shares the amount specified
in Section 9.2(b) of the Charter (the “Redemption Price”);
WHEREAS,
in connection with the Transactions, Subscriber desires to subscribe for and purchase from the Company, prior to the Valuation Date,
as defined in the Forward Purchase Agreement (as defined below), as Additional Shares, as defined in the Forward Purchase Agreement,
that number of shares of Common Stock up to the Maximum Number of Shares as set forth in the Forward Purchase Agreement (the “Subscribed
Shares”) for a purchase price of the Initial Price per share (the “Per Share Price” and the aggregate of
such Per Share Price for all Subscribed Shares being referred to herein as the “Purchase Price”), less the number
of Recycled Shares, as defined in the Forward Purchase Agreement, provided, however, that Subscriber shall not be required to purchase
an amount of Shares, as defined in the Forward Purchase Agreement, such that following the issuance of Shares, its ownership would exceed
9.9% ownership of the total Shares outstanding immediately after giving effect to such issuance unless Subscriber at its sole discretion
waives such 9.9% ownership limitation, and the Company desires to issue and sell to Subscriber the Subscribed Shares in consideration
of the payment of the Purchase Price by or on behalf of Subscriber to the Company, all on the terms and subject to the conditions set
forth herein; and
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:
Section
1. Subscription. Subject to the terms and conditions hereof, Subscriber hereby agrees that at
the Closing (as defined below), to irrevocably subscribe for and purchase from the Company, and the Company hereby agrees to issue and
sell to Subscriber, the Subscribed Shares (such subscription and issuance, the “Subscription”).
Section
2. Closing.
(a)
The consummation of the Subscription contemplated hereby (the “Closing”) shall occur
on the closing date of the Transactions (the “Closing Date”) for those Subscribed Shares that the Forward Purchase
Agreement provides will be purchased at such time, with such Closing occurring substantially concurrently with (but not before) the consummation
of the Transactions and subject to the terms and conditions of this Subscription Agreement. The purchase of any additional Subscribed
Shares as provided for by the Forward Purchase Agreement shall occur subsequently to the Closing Date following the delivery of a Pricing
Date Notice.
(b)
At least five Business Days before the anticipated Closing Date, the Company shall deliver written notice
to Subscriber (the “Closing Notice”) specifying (i) the anticipated Closing Date and (ii) the wire instructions for
delivery of the Purchase Price to the Company. No later than one Business Day prior to the Closing Date as set forth in the Closing Notice,
Subscriber shall provide the Pricing Date Notice as defined in the Forward Purchase Agreement and deliver the Purchase Price (subject
to adjustment as described below) after netting for requirements as described in Prepayment of the Forward Purchase Agreement as it relates
to Additional Shares, for the Subscribed Shares by wire transfer of United States dollars in immediately available funds to the account
specified by the Company in the Closing Notice, and such funds shall be held by the Company in escrow, segregated from and not comingled
with the other funds of the Company (and in no event will such funds be held in the Trust Account (as defined below)), until the Closing
Date. Upon satisfaction (or, if applicable, waiver) of the conditions set forth in this Section 2, the Company shall deliver
to Subscriber (i) on the Closing Date, the Subscribed Shares in book entry form, free and clear of any liens or other restrictions
(other than those arising under this Subscription Agreement or applicable securities laws), in the name of Subscriber (or its nominee
or custodian in accordance with its delivery instructions) (and the Purchase Price shall be released from escrow automatically and without
further action by the Company or Subscriber), and (ii) as promptly as practicable after the Closing, evidence from the Company’s
transfer agent of the issuance to Subscriber of the Subscribed Shares on and as of the Closing Date.
(c)
In the event that the consummation of the Transactions does not occur within two Business Days after
the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by the Company and Subscriber, the
Company, shall promptly (but in no event later than three Business Days after the anticipated Closing Date specified in the Closing
Notice) return the funds so delivered by Subscriber by wire transfer in immediately available funds to the account specified by Subscriber,
and any book entries shall be deemed cancelled. Notwithstanding such return or cancellation (x) a failure to close on the anticipated
Closing Date shall not, by itself, be deemed to be a failure of any of the conditions to Closing set forth in this Section 2 to
be satisfied or waived on or prior to the Closing Date, and (y) unless and until this Subscription Agreement is terminated in accordance
with Section 6 herein, Subscriber shall remain obligated to redeliver funds to the Company, as set forth in the Closing Notice,
following the Company’s delivery to Subscriber of a new Closing Notice in accordance with this Section 2 and Subscriber
and the Company shall remain obligated to consummate the Closing upon satisfaction of the conditions set forth in this Section 2
following the Company’s delivery to Subscriber of a new Closing Notice. For the purposes of this Subscription Agreement, “Business
Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York are open for the general
transaction of business.
(d)
The obligations of Subscriber and the Company to consummate, or cause to be consummated, the transactions
contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable law,
waiver by the parties hereto, of the conditions that, on the Closing Date:
| (i) | no
suspension of the listing of the Subscribed Shares on the NYSE American (the “NYSE”),
or, to the Company’s knowledge, initiation or threatening of any proceedings for any
of such purposes, shall have occurred (except other than as a result of the Company moving
its listing from NYSE American to Nasdaq or New York Stock Exchange)
or that will be cured by the effectiveness of a resale registration statement on Form
S-1); |
| (ii) | all
conditions precedent to the closing of the Transactions set forth in Article VIII of the
Transaction Agreement shall have been satisfied (as determined by the parties to the Transaction
Agreement) or waived in writing by the person with the authority to make such waiver (other
than those conditions which, by their nature, are to be satisfied at the closing of the Transactions
pursuant to the Transaction Agreement, but subject to the satisfaction of such conditions
at such closing), and the closing of the Transaction shall be scheduled to occur concurrently
with or immediately following the Closing; |
| (iii) | all
conditions precedent to the execution of the forward purchase agreement entered into between
the Company and Subscriber on the date hereof (the “Forward Purchase Agreement”),
have been satisfied or waived in writing by the person with the authority to make such waiver
(other than those conditions which, by their nature, are to be satisfied at the closing of
the Transactions pursuant to the Transaction Agreement, but subject to the satisfaction of
such conditions at such closing), and the closing of the Transaction shall be scheduled to
occur concurrently with or immediately following the Closing; and |
| (iv) | no
order or law issued by any court of competent jurisdiction or other governmental entity or
other legal restraint or prohibition preventing the consummation of the transactions contemplated
by this Subscription Agreement (including the Closing) shall be in effect. |
(e)
The obligations of the Company to consummate, or cause to be consummated, the transactions contemplated
by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable Law, waiver by
the Company of the additional conditions that, on the Closing Date:
| (i) | except
as otherwise provided under Section 2(e)(ii), all representations and warranties of
Subscriber contained in this Subscription Agreement shall be true and correct (without giving
effect to any limitation as to “materiality” or any similar limitation set forth
therein) in all respects as of the Closing Date, as though made on and as of the Closing
Date (except to the extent that any such representation and warranty expressly speaks as
of an earlier date, in which case such representation and warranty shall be true and correct
in all material respects (other than representations and warranties that are qualified as
to materiality or Subscriber Material Adverse Effect, which representations and warranties
shall be true and correct in all respects) as of such earlier date), and consummation of
the Closing shall constitute a reaffirmation by Subscriber of each of the representations,
warranties and agreements of Subscriber contained in this Subscription Agreement as of the
Closing Date, but without giving effect to consummation of the Transactions, or as of such
earlier date, as applicable; |
| (ii) | the
representations and warranties of Subscriber contained in Section 4(w) of this Subscription
Agreement shall be true and correct at all times on or prior to the Closing Date, and consummation
of the Closing shall constitute a reaffirmation by Subscriber of such representations and
warranties; and |
| (iii) | Subscriber
shall have performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Subscription Agreement to be performed, satisfied
or complied with by it at or prior to the Closing. |
(f)
The obligations of Subscriber to consummate, or cause to be consummated, the transactions contemplated
by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable Law, waiver by
Subscriber of the additional conditions that, on the Closing Date:
| (i) | all
representations and warranties of the Company contained in this Subscription Agreement shall
be true and correct (without giving effect to any limitation as to “materiality”
or any similar limitation set forth therein) in all respects as of the Closing Date, as though
made on and as of the Closing Date (except to the extent that any such representation and
warranty expressly speaks as of an earlier date, in which case such representation and warranty
shall be true and correct in all material respects (other than representations and warranties
that are qualified as to materiality or Company Material Adverse Effect, which representations
and warranties shall be true and correct in all respects) as of such earlier date), and consummation
of the Closing shall constitute a reaffirmation by the Company of each of the representations,
warranties and agreements of the Company, respectively, contained in this Subscription Agreement
as of the Closing Date, but without giving effect to consummation of the Transactions, or
as of such earlier date, as applicable, except, in each case, where the failure of such representations
and warranties to be true and correct (whether as of the Closing Date or such earlier date),
taken as a whole, does not result in a Company Material Adverse Effect; |
| (ii) | the
Company shall have performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Subscription Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing; |
| (iii) | prior
debts (exclusive of any expenses, payables or liabilities incurred in the ordinary course
of business) of the Company have either been or will be satisfied or will be converted to
shares of the Company as of the Closing Date; and |
| (iv) | there
shall have been no amendment or modification to the Transaction Agreement after the date
hereof that materially and adversely affects the Company or the Subscriber’s investment
in the Company, other than amendments, waivers or modifications as expressly contemplated
by and included in the terms of the Transaction Agreement as of the date of its execution. |
(g)
Prior to or at the Closing, Subscriber shall deliver to the Company all such other information as is reasonably
requested in order for the Company to issue the Subscribed Shares to Subscriber, including, without limitation, the legal name of the
person in whose name the Subscribed Shares are to be issued (or Subscriber’s nominee in accordance with its delivery instructions)
and a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8, including, if Subscriber is not a United
States person within the meaning of section 7701(a)(30) of the Code (as defined below), a duly completed and executed Internal Revenue
Service Form W-9 or appropriate Form W-8 of any indirect owner of Subscriber.
Section
3. Company Representations and Warranties. For purposes of this Section 3, the term “Company”
shall refer to (i) the Company as of the date hereof, and (ii) for purposes of the representations contained in subsections (e), (f),
(h), (l), (p), and (r) of this Section 3 and to the extent such representations and warranties are made as of the Closing Date,
the combined company after giving effect to the Transaction as of the Closing Date. The Company represents and warrants to Subscriber
that:
(a)
The Company (i) is validly existing and in good standing under the laws of the Delaware, (ii) has the requisite
corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to
enter into and perform its obligations under this Subscription Agreement, and (iii) is duly licensed or qualified to conduct its business
and, if applicable, is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the
conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to
the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a Company Material
Adverse Effect. For purposes of this Subscription Agreement, a “Company Material Adverse Effect” means an event, change,
development, occurrence, condition or effect (collectively “Effect”) that, individually or in the aggregate, (a) is
or would reasonably be expected to be materially adverse to the business, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole; or (b) would reasonably be expected to prevent, materially impair or materially delay (x) the
Company’s or any of its subsidiary’s performance of its or their obligations under this Subscription Agreement or the Transaction
Agreement or (y) consummation of the Transactions; provided, however, that, in the case of clause (a), none of the following shall
be deemed to constitute, alone or in combination, or be taken into account in the determination of whether, there has been or will be
a Company Material Adverse Effect: (1) any change or proposed change in or change in applicable law or GAAP (as defined below) (including,
in each case, the interpretation thereof) after the date of this Subscription Agreement; (2) events or conditions generally affecting
the industries or geographic areas in which the Company operates; (3) any downturn in general economic conditions, including changes
in the credit, debt, securities, financial or capital markets (including changes in interest or exchange rates, prices of any security
or market index or commodity or any disruption of such markets); (4) acts of war, sabotage, civil unrest or terrorism, or any escalation
or worsening of any such acts of war, sabotage, civil unrest or terrorism, or changes in global, national, regional, state or local political
or social conditions; (5) any hurricane, tornado, flood, earthquake, mudslide, wildfire, natural disaster, epidemic, disease outbreak,
pandemic (including, for the avoidance of doubt, the novel coronavirus, SARS-CoV-2 or COVID-19 and all related strains and sequences)
or other acts of God, (6) any actions taken or not taken by the Company as required by this Subscription Agreement, the Transaction
Agreement or any other agreement executed and delivered in connection with the Transactions and specifically contemplated by the Transaction
Agreement or (7) any Effect attributable to the announcement or execution, pendency, negotiation or consummation of the Transactions,
except in the cases of clauses (1) through (3), to the extent that the Company is materially and disproportionately affected thereby
as compared with other participants in the industry in which the Company operates.
(b)
When issued pursuant to this Subscription Agreement, the Subscribed Shares have been duly authorized and,
when issued and delivered to Subscriber (or its nominee or custodian in accordance with its delivery instructions) against full payment
therefor in accordance with the terms of this Subscription Agreement, will be validly issued, fully paid and non-assessable, free and
clear of all liens or other restrictions (but excluding the restrictions on transfer described in Section 4(e) of this Subscription Agreement
with respect to the status of the Subscribed Shares as “restricted securities” pending their registration for resale under
the Securities Act of 1933, as amended (the “Securities Act”)), and will not have been issued in violation of, or
subject to, any preemptive or similar rights created under the Company’s governing and organizational documents, the laws of the
Cayman Islands or the laws of the State of Delaware.
(c)
This Subscription Agreement has been duly authorized, validly executed and delivered by the Company, and
assuming the due authorization, execution and delivery of the same by Subscriber, this Subscription Agreement shall constitute the valid
and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability
of equitable remedies.
(d)
Assuming the accuracy of the representations and warranties of Subscriber set forth in Section
4 of this Subscription Agreement, the execution and delivery of this Subscription Agreement, the issuance and sale of the Subscribed
Shares, the compliance by the Company with all of the provisions of this Subscription Agreement and the consummation of the transactions
contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant
to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which
the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) the
organizational documents of the Company, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that, in the case of clauses (i)
and (iii), would reasonably be expected to have a Company Material Adverse Effect.
(e)
Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4
of this Subscription Agreement, the Company is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory
organization (including any stock exchange on which the Common Stock will be listed (the “Stock Exchange”) or other
person in connection with the execution, delivery and performance of this Subscription Agreement (including, without limitation, the
issuance of the Subscribed Shares by the Company), other than (i) filings required by applicable state securities laws, (ii) filings
with the Commission, including the filing of the Registration Statement (as defined below) pursuant to Section 5 below, (iii)
filings required by the Securities Act, Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the
rules of the Commission, including the registration statement on Form F-4 with respect to the Transactions and the proxy statement/prospectus
included therein, (iv) filings required by the Stock Exchange, including with respect to obtaining shareholder approval of the Transactions,
(v) filings required to consummate the Transactions as provided under the Transaction Agreement, (vi) the filing of notification under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, if applicable, (vii) filings in connection with or as a result of the SEC Guidance
(as defined below) and (viii) those the failure of which to obtain would not have a Company Material Adverse Effect.
(f)
Except for such matters as have not had and would not reasonably be expected to have a Company Material
Adverse Effect, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to
the knowledge of the Company, threatened in writing against the Company or (ii) judgment, decree, injunction, ruling or order of any
governmental authority or arbitrator outstanding against the Company.
(g)
Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 4
of this Subscription Agreement, no registration under the Securities Act or any state securities (or Blue Sky) laws is required for
the offer and sale of the Subscribed Shares by the Company to Subscriber.
(h)
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) in connection with any offer or sale of the Subscribed Shares.
The Subscribed Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the
Securities Act or any state securities laws. Neither the Company nor any person acting on their behalf has, directly or indirectly, at
any time within the past six months, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances
that would (i) eliminate the availability of the exemption from registration under the Securities Act in connection with the offer
and sale by the Company of the Subscribed Shares as contemplated hereby or (ii) cause the offering of the Subscribed Shares pursuant
to this Subscription Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act or any applicable
shareholder approval provisions. Neither the Company nor any person acting on their behalf has offered or sold or will offer or sell
any securities, or has taken or will take any other action, which would reasonably be expected to subject the offer, issuance or sale
of the Subscribed Shares, as contemplated hereby, to the registration provisions of the Securities Act.
(i)
No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities
Act (a “Disqualification Event”) is applicable to the Company, except for a Disqualification Event as to which Rule
506(d)(2)(ii–iv) or (d)(3) of the Securities Act is applicable.
(j)
[reserved].
(k)
The Company is in all material respects in compliance with, and has not received any written communication
from a governmental entity that alleges that the Company is not in compliance with, or is in default or violation of, the applicable
provisions of (i) the Securities Act, (ii) the Exchange Act, (iii) the Sarbanes-Oxley Act of 2002, as amended, and the rules and
regulations thereunder, (iv) the rules and regulations of the Commission, and (v) the rules of the Stock Exchange. For the avoidance
of doubt, this representation and warranty shall not apply to the extent any of the foregoing matters arise from or relate to the SEC
Guidance (as defined below).
(l)
When the Subscribed Shares are issued pursuant to this Subscription Agreement, the Common Stock will be
eligible for clearing through The Depository Trust Company (the “DTC”), through its Deposit/Withdrawal At Custodian
(DWAC) system, and the Company will be eligible and participating in the Direct Registration System (DRS) of DTC with respect to the
Common Stock. The Company’s transfer agent will be a participant in DTC’s Fast Automated Securities Transfer Program. The
Common Stock will not be, and will not have been at any time, subject to any DTC “chill,” “freeze” or similar
restriction with respect to any DTC services, including the clearing of shares of Common Stock through DTC.
(m)
No broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection
with the sale of the Subscribed Shares to Subscriber.
(n)
The Company has timely made all filings required to be filed by it with the Commission, except as set forth
in its filings with the Commission. As of their respective dates, each form, report, statement, schedule, prospectus, proxy, registration
statement and other document required to be filed by the Company with the Commission prior to the date hereof (collectively, as amended
and/or restated since the time of their filing, the “SEC Documents”) complied in all material respects with the requirements
of the Securities Act and the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, and none of the SEC
Documents, as of their respective dates (or if amended, restated, or superseded by a filing prior to the closing of the Transactions,
on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The financial statements of the Company included in the SEC Documents (or if amended, restated, or superseded by a filing prior to the
closing of the Transactions, on the date of such filing) comply in all material respects with applicable accounting requirements and
the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material
respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods
then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments, and such consolidated financial statements
have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis during the
periods involved (“GAAP”) (except as may be disclosed therein or in the notes thereto, and except that the unaudited
financial statements may not contain all footnotes required by GAAP). A copy of each SEC Document is available to each Subscriber via
the Commission’s EDGAR system. There are no material outstanding or unresolved comments in comment letters from the staff of the
Division of Corporation Finance of the Commission with respect to any of the SEC Documents as of the date hereof. Notwithstanding the
foregoing, this representation and warranty shall not apply to any statement or information in the SEC Documents that relates to (i)
the topics referenced in the Commission’s “Staff Statement on Accounting and Reporting Considerations for Warrants Issued
by Special Purpose Acquisition Companies” on April 12, 2021 or (ii) the classification of shares of the Company’s common
stock as permanent or temporary equity, (collectively, the “SEC Guidance”), and no correction, amendment or restatement
of any of the Company’s SEC Documents due to the SEC Guidance shall be deemed to be a breach of any representation or warranty
by the Company.
(o)
As of the date hereof, the authorized capital stock of the Company consists of (i) 1,000,000 shares of
preferred stock, par value $0.0001 per share (the “Company Preferred Stock”) and (ii) 100,000,000 shares of Common
Shares. As of the date of this Subscription Agreement, (i) no shares of Company Preferred Stock are issued and outstanding, (ii) 4,509,403
Common Shares are issued and outstanding, (iii) 8,625,000 public redeemable warrants of the Company and 505,000 private placement warrants
of the Company are outstanding and (iv) $[925,654] of loans are outstanding that may be converted into warrants of the Company. As of
the date of this Subscription Agreement, all (i) issued and outstanding Common Shares have been duly authorized and validly issued, are
fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding warrants of the Company have been duly
authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant the Transaction
Agreement and the other agreements and arrangements referred to in the Transaction Agreement, as of the date hereof, there are no outstanding
options, warrants or other rights to subscribe for, purchase or acquire from the Company any Common Shares or other equity interests
in the Company, or securities convertible into or exchangeable or exercisable for such equity interests. Except as set forth in the SEC
Reports, As of the date hereof, the Company has no subsidiaries and does not own, directly or indirectly, interests or investments (whether
equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements
or understandings to which the Company is a party or by which it is bound relating to the voting of any securities of the Company, as
applicable, other than (A) as set forth in the SEC Reports and (B) as contemplated by the Transaction Agreement. There are no securities
or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered by
the issuance of the Subscribed Equity that have not been or will not be validly waived on or prior to the Closing Date.
(p)
Except for such matters as have not had and would not be reasonably likely to have a Company Material Adverse
Effect, the Company is in compliance with all state and federal laws applicable to the conduct of its business. The Company has not received
any written, or to its knowledge, other communication from a governmental entity that alleges that the Company is not in compliance with
or is in default or violation of any applicable law, except where such non-compliance, default or violation would not be reasonably likely
to have, individually or in the aggregate, a Company Material Adverse Effect.
(q)
The Company is not, and immediately after receipt of payment for the Subscribed Shares and consummation
of the Transactions, will not be, an “investment company” within the meaning of the Investment Company Act.
(r)
The Company acknowledges that there have not been, and the Company hereby agrees that it is not relying
on, any representations, warranties, covenants or agreements made to the Company by Subscriber, any of its affiliates or any control
persons, officers, directors, employees, partners, agents or representatives, any other party to the Transactions or any other person
or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of Subscriber set forth
in this Subscription Agreement.
Section
4. Subscriber Representations and Warranties. Subscriber represents and warrants to the Company
that:
(a)
If Subscriber is a legal entity, Subscriber (i) has been duly formed and is validly existing and in good
standing under the laws of its jurisdiction of formation or incorporation and (ii) has the requisite power and authority to enter into,
and perform its obligations under, this Subscription Agreement. If Subscriber is an individual, Subscriber has the legal competence and
capacity to enter into and perform its obligations under this Subscription Agreement.
(b)
If Subscriber is an entity, this Subscription Agreement has been duly authorized, validly executed and
delivered by Subscriber. If Subscriber is an individual, Subscriber’s signature is genuine and the signatory has the legal competence
and capacity to execute this Subscription Agreement. Assuming the due authorization, execution and delivery of the same by the Company,
this Subscription Agreement shall constitute the valid and legally binding obligation of Subscriber, enforceable against Subscriber in
accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting creditors generally and by the availability of equitable remedies.
(c)
The purchase of the Subscribed Shares hereunder, the compliance by Subscriber with all of the provisions
of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of
trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound
or to which any of the property or assets of Subscriber is subject; (ii) if Subscriber is a legal entity, the organizational documents
of Subscriber; 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 Subscriber or any of its properties that in the case of clauses (i) and (iii), would
reasonably be expected to have a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber
Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Subscriber that,
individually or in the aggregate, would reasonably be expected to materially impair or materially delay Subscriber’s performance
of its obligations under this Subscription Agreement, including the purchase of the Subscribed Shares.
(d)
Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities
Act), an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities
Act), or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) satisfying the applicable
requirements set forth on Annex A hereto, (ii) is acquiring the Subscribed Shares only for its own account and not for the account
of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each
owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited
investor” (within the meaning of Rule 501(a) under the Securities Act) and Subscriber has sole investment discretion with respect
to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf
of each owner of each such account, and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection
with, any distribution thereof in violation of the Securities Act (and has provided the Company with the requested information on Annex
A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares.
(e)
Subscriber acknowledges and agrees that the Subscribed Shares are being offered in a transaction not involving
any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities
Act and that the Company is not required to register the Subscribed Shares except as set forth in Section 5 of this Subscription
Agreement. Subscriber acknowledges and agrees that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise
disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Company or a subsidiary
thereof, (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act, and, in each of clauses (i)-(ii),
in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates
or account entries representing the Subscribed Shares shall contain a restrictive legend to such effect. Subscriber acknowledges and
agrees that the Subscribed Shares will be subject to these securities law transfer restrictions, and as a result of these transfer restrictions,
Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Subscribed Shares and may be required
to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber acknowledges and agrees
that the Subscribed Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated
under the Securities Act (“Rule 144”) until at least one year following the filing of certain required information
with the Commission after the Closing Date. Subscriber acknowledges and agrees that it has been advised to consult legal counsel prior
to making any offer, resale, pledge or transfer of any of the Subscribed Shares.
(f)
Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the
Company. Subscriber further acknowledges that there have not been, and Subscriber hereby agrees that it is not relying on, any representations,
warranties, covenants or agreements made to Subscriber by the Company or its subsidiaries (collectively, the “Acquired
Companies”) or any of its or their respective affiliates or any control persons, officers, directors, employees, partners,
agents or representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than
those representations, warranties, covenants and agreements of the Company set forth in this Subscription Agreement.
(g) In
making its decision to purchase the Subscribed Shares, Subscriber has relied solely upon an independent investigation made by
Subscriber and the Company’s representations in Section 3 of this Subscription Agreement. Subscriber has not relied on
any statements or other information provided by the Company concerning the Company, the Target or its subsidiaries (collectively, the “Acquired Companies”), the Subscribed Shares,
or the Subscription. Subscriber acknowledges and agrees that Subscriber has had access to, has received, and has had an adequate
opportunity to review, such information as Subscriber deems necessary in order to make an investment decision with respect to the
Subscribed Shares, including with respect to the Company, the Acquired Companies and the Transactions, and Subscriber has made its
own assessment and is satisfied concerning the relevant financial, tax and other economic considerations relevant to
Subscriber’s investment in the Subscribed Shares. Without limiting the generality of the foregoing, Subscriber acknowledges
that it has reviewed the Company’s filings with the Commission. Subscriber represents and agrees that Subscriber and
Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and
obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an
investment decision with respect to the Subscribed Shares, including but not limited to information concerning the Company, the
Acquired Companies, the Transaction Agreement, and the Subscription.
(h)
Subscriber acknowledges that certain information provided by the Company was based on projections, and
such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of
significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those
contained in the projections. Subscriber further acknowledges that the information provided to Subscriber was preliminary and subject
to change, including in the registration statement and the proxy statement/prospectus that the Company intends to file with the Commission
(which will include substantial additional information about the Company, Acquired Companies and the Transactions and will update and
supersede the information previously provided to Subscriber).
(i)
Subscriber acknowledges and agrees that none of the Acquired Companies nor their respective affiliates
or any of such person’s or its or their respective affiliates’ control persons, officers, directors, partners, members, managing
members, managers, agents, employees or other representatives, legal counsel, financial advisors, accountants or agents (collectively,
“Representatives”) has provided Subscriber with any information or advice with respect to the Subscribed Shares nor
is such information or advice necessary or desired. None of the Acquired Companies or any of their respective affiliates or Representatives
has made or makes any representation as to the Company, Target or the Acquired Companies or the quality or value of the Subscribed Shares.
(j)
Subscriber acknowledges that (i) the Company currently has, and later may come into possession of, information
regarding the Company that is not known to Subscriber and that may be material to its determination to enter into this Subscription Agreement
(“Excluded Information”), (ii) Subscriber has determined to enter into this Subscription Agreement to purchase the
Subscribed Shares notwithstanding Subscriber’s lack of knowledge of the Excluded Information, and (iii) none of the Company or
the Acquired Companies shall have liability to Subscriber, and Subscriber hereby waives and releases any claims Subscriber may have against
the Company or the Acquired Companies, to the maximum extent permitted by law, with respect to the nondisclosure of the Excluded Information.
(k)
Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between
Subscriber and the Company and its affiliates, and the Subscribed Shares were offered to Subscriber solely by direct contact between
Subscriber and the Company or its affiliates. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the
Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Subscribed Shares (i) were not offered
by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) and (ii) are not
being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities
laws.
(l)
Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and
ownership of the Subscribed Shares, including those set forth in the SEC Documents. Subscriber 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 Subscribed Shares, and Subscriber has
had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as Subscriber has considered necessary to
make an informed investment decision. Subscriber acknowledges and agrees that neither the Company nor any of its affiliates has provided
any tax advice to Subscriber or made any representations or warranties or guarantees to Subscriber regarding the tax treatment of its
investment in the Subscribed Shares. Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c) or an “accredited
investor” as defined in Rule 501(a) under the Securities Act, (ii) is a sophisticated investor, experienced in investing in private
equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and
investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation
in the purchase of the Subscribed Shares.
(m)
Subscriber has analyzed and fully considered the risks of an investment in the Subscribed Shares and determined
that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future
to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber acknowledges specifically that
a possibility of total loss exists.
(n)
Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits
of the offering of the Subscribed Shares or made any findings or determination as to the fairness of this investment.
(o)
Neither Subscriber nor any of its affiliates, officers, directors, managers, managing members, general
partners or any other person acting in a similar capacity or carrying out a similar function is (i) a person (including individual or
entity) that is the target of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time
by relevant governmental authorities, including, but not limited to those administered by the U.S. government through the Office of Foreign
Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State, the United Nations
Security Council, the European Union, or His Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”),
(ii) a person or entity listed on the List of Specially Designated Nationals and Blocked Persons administered by OFAC, or in any Executive
Order issued by the President of the United States and administered by OFAC, or any other any Sanctions-related list of sanctioned persons
maintained by OFAC, the Department of Commerce or the U.S. Department of State, the United Nations Security Council, the European Union,
any EU member state, or the United Kingdom (collectively, “Sanctions Lists”), (iii) organized, incorporated, established,
located, resident or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof,
of, Cuba, Iran, North Korea, Syria, Venezuela, Afghanistan, the Crimea, the so-called Donetsk People’s Republic, or the so-called
Luhansk People’s Republic regions of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions
by the United States, the European Union or any individual European Union member state, or the United Kingdom; (iv) directly or indirectly
owned or controlled 50% or more by, or acting on behalf of, any such person or persons described in any of the foregoing clauses (i)
through (iv); or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, (i) through
(v), a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records
as required by applicable law; provided that Subscriber is permitted to do so under applicable law. Subscriber represents that (i) if
it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of
2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and
procedures to ensure compliance with its obligations under the BSA/PATRIOT Act, and (ii) to the extent required, it maintains policies
and procedures reasonably designed to ensure compliance with the anti-money laundering-related laws administered and enforced by other
governmental authorities. Subscriber also represents that it maintains policies and procedures reasonably designed to ensure compliance
with Sanctions. Subscriber further represents and warrants that (i) none of the funds held by Subscriber and used to purchase the Shares
are or will be derived from transactions with or for the benefit of any Prohibited Investor, and (ii) it maintains policies and procedures
reasonably designed to ensure the funds held by Subscriber and used to purchase the Shares were legally derived and were not obtained,
directly or indirectly, from a Prohibited Investor.
(p)
No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments
of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the
Company as a result of the purchase and sale of Subscribed Shares hereunder, and no foreign person will have control (as defined in 31
C.F.R. Part 800.208) over the Company from and after the Closing as a result of the purchase and sale of Subscribed Shares hereunder.
(q)
If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is
subject to section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or an employee benefit plan
that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S.
plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under
any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an
entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a
“Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber
represents and warrants that (i) it has not relied on the Company or any of their respective affiliates (the “Transaction Parties”)
for investment advice or as the Plan’s fiduciary with respect to its decision to acquire and hold the Subscribed Shares, and none
of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue
to hold or transfer the Subscribed Shares and (ii) the acquisition and holding of the Subscribed Shares will not result in a non-exempt
prohibited transaction under ERISA or section 4975 of the Code.
(r)
Subscriber has or has commitments to have and, when required to deliver payment pursuant to Section
2, Subscriber will have sufficient funds to pay the Purchase Price pursuant to Section 2.
(s)
Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation
or warranty made by any person, firm or corporation (including, without limitation, the Company, Target, the Acquired Companies or any
of their respective affiliates or Representatives), other than the representations and warranties of the Company contained in Section
3 of this Subscription Agreement, in making its investment or decision to invest in the Company. Subscriber agrees that none of (i)
any other agreement related to the private placement of shares of Common Stock (including the controlling persons, officers, directors,
partners, agents or employees of any such Subscriber) nor (ii) the Company, the Acquired Companies or any of their respective affiliates
or Representatives, shall be liable (including, without limitation, for or with respect to any losses, claims, damages, obligations,
penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Company, or any other person
or entity), whether in contract, tort or otherwise, or have any liability or obligation to Subscriber, or any person claiming through
Subscriber, pursuant to this Subscription Agreement or related to the private placement of the Subscribed Shares, the negotiation hereof
or the subject matter hereof, or the transactions contemplated hereby, for any action heretofore or hereafter taken or omitted to be
taken by any of the foregoing in connection with the purchase of the Subscribed Shares.
(t)
No broker or finder is entitled to any brokerage or finder’s fee or commission to be paid by Subscriber
solely in connection with the sale of the Subscribed Shares to Subscriber.
(u)
At all times on or prior to the Closing Date, Subscriber has no binding commitment to dispose of, or otherwise
transfer (directly or indirectly), any of the Subscribed Shares.
(v)
Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by Subscriber
with the Commission with respect to the beneficial ownership of the Company’s outstanding securities prior to the date hereof,
Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group”
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting
for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act).
(w)
Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment
of non-public information relating to the Company, Target and the Transactions.
(x)
Subscriber acknowledges that any restatement, revision, correction or other modification of the SEC Documents
to the extent resulting from the SEC Guidance shall not constitute a breach by the Company of this Subscription Agreement.
Section
5. Registration of Subscribed Shares.
(a)
Subject to Section 5(c), the Company agrees that, within thirty calendar days following the Closing
Date, the Company will file with the Commission (at the Company’s sole cost and expense) a registration statement registering the
resale of the Subscribed Shares (the “Registration Statement”), 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 in any event no later
than ninety calendar days after the Closing Date (the “Effectiveness Deadline”); provided, that the Effectiveness
Deadline shall be extended to one hundred twenty calendar days after the Closing Date if the Registration Statement is reviewed by, and
comments thereto are provided from, the Commission; provided, further that the Company shall have the Registration Statement
declared effective within five Business Days after the date the Company is notified (orally or in writing, whichever is earlier) by the
staff of the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review;
provided, further, that (i) if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission
is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business
and (ii) if the Commission is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the
same number of Business Days that the Commission remains closed for. Unless otherwise agreed to in writing by Subscriber prior to the
filing of the Registration Statement, Subscriber shall not be identified as a statutory underwriter in the Registration Statement; provided,
that if the Commission requests that Subscriber be identified as a statutory underwriter in the Registration Statement, Subscriber will
have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company. Notwithstanding the
foregoing, if the Commission prevents the Company from including any or all of the shares proposed to be registered under the Registration
Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Subscribed Shares by the applicable stockholders
or otherwise, such Registration Statement shall register for resale such number of Subscribed Shares which is equal to the maximum number
of Subscribed Shares as is permitted by the Commission. In such event, the number of Subscribed Shares or other shares to be registered
for each selling stockholder named in the Registration Statement shall be reduced pro rata, unless otherwise directed in writing by a
selling stockholder as to its securities to register fewer securities, among all such selling stockholders (except that such pro rata
reduction shall not apply with respect to any securities the registration of which is necessary to satisfy applicable listing rules of
a national securities exchange) and as promptly as practicable after being permitted to register additional shares under Rule 415 under
the Securities Act, the Company shall use its commercially reasonable efforts to amend the Registration Statement or file one or more
new Registration Statement(s) (such amendment or new Registration Statement shall also be deemed to be a “Registration Statement”
hereunder) to register such additional Subscribed Shares and cause such amendment or Registration Statement(s) to become effective as
promptly as practicable after the filing thereof, but in any event no later than thirty calendar days after the filing of such Registration
Statement (the “Additional Effectiveness Deadline”); provided, that the Additional Effectiveness Deadline shall
be extended to ninety calendar days (or one hundred twenty calendar days if the Commission notifies the Company that it will “review”
such Registration Statement) after the filing of such Registration Statement if such Registration Statement is reviewed by, and comments
thereto are provided from, the Commission; provided, further, that the Company shall have such Registration Statement declared
effective within five Business Days after the date the Company is notified (orally or in writing, whichever is earlier) by the staff
of the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review; provided,
further, that (i) if such day falls on a Saturday, Sunday or other day that the Commission is closed for business, the Additional
Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business and (ii) if the Commission
is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the same number of Business Days
that the Commission remains closed for. Any failure by the Company to file a Registration Statement by the Additional Effectiveness Deadline
or Additional Effectiveness Deadline shall not otherwise relieve the Company of its obligations to file or effect a Registration Statement
as set forth in this Section 5.
(b)
The Company agrees that, except for such times as the Company is permitted hereunder to suspend the use
of the prospectus forming part of a Registration Statement, the Company will use its commercially reasonable efforts to cause such Registration
Statement to remain effective with respect to Subscriber, including to prepare and file any post-effective amendment to such Registration
Statement or a supplement to the related prospectus such that the prospectus will not include any untrue statement or a material fact
or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading, until the earliest to occur of (i) the date on which Subscriber ceases to hold any Subscribed Shares issued pursuant
to this Subscription Agreement and (ii) the first date on which Subscriber can sell all of its Subscribed Shares issued pursuant to this
Subscription Agreement (or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation as to the manner
of sale or the amount of such securities that may be sold and without the requirement for the Company to be in compliance with the current
public information required under Rule 144(c)(1) (the earliest of clauses (i) and (ii), the “End Date”). Prior to
the End Date, the Company will use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness
of any Registration Statement as soon as reasonably practicable; file all reports, and provide all customary and reasonable cooperation,
necessary to enable Subscriber to resell Subscribed Shares pursuant to the Registration Statement; qualify the Subscribed Shares for
listing on the applicable stock exchange on which the Common Stock is then listed and update or amend the Registration Statement as necessary
to include Subscribed Shares. The Company will use its commercially reasonable efforts to (A) for so long as Subscriber holds Subscribed
Shares, make and keep public information available (as those terms are understood and defined in Rule 144) and file with the Commission
in a timely manner all reports and other documents required of the Company under the Exchange Act so long as the Company remains subject
to such requirements to enable Subscriber to resell the Subscribed Shares pursuant to Rule 144, (B) at the reasonable request of Subscriber,
deliver all the necessary documentation to cause the Company’s transfer agent to remove all restrictive legends from any Subscribed
Shares being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of the Subscribed Shares, or that may
be sold by Subscriber without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and
(C) cause its legal counsel to deliver to the transfer agent the necessary legal opinions required by the transfer agent, if any, in
connection with the instruction under clause (B) upon the receipt of Subscriber representation letters and such other customary
supporting documentation as requested by (and in a form reasonably acceptable to) such counsel. Subscriber agrees to disclose its beneficial
ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Subscribed Shares to the Company (or its successor) upon
reasonable request to assist the Company in making the determination described above.
(c)
The Company’s obligations to include the Subscribed Shares in the Registration Statement are contingent
upon Subscriber furnishing in writing to the Company a completed selling stockholder questionnaire in customary form that contains such
information regarding Subscriber, the securities of the Company held by Subscriber and the intended method of disposition of the Subscribed
Shares as shall be reasonably requested by the Company to effect the registration of the Subscribed Shares, and Subscriber 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 (i) during any customary blackout or similar period or as permitted hereunder and (ii) as may be necessary in
connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of the Company’s
Annual Report on Form 10-K for its first completed fiscal year following the effective date of the Registration Statement; provided,
that the Company shall request such information from Subscriber, including the selling stockholder questionnaire, at least five calendar
days prior to the anticipated date of filing the Registration Statement with the Commission. In the case of the registration effected
by the Company pursuant to this Subscription Agreement, the Company shall, upon reasonable request, inform Subscriber as to the status
of such registration. Subscriber shall not be entitled to use the Registration Statement for an underwritten offering of Subscribed Shares.
Notwithstanding anything to the contrary contained herein, the Company may delay or postpone filing of such Registration Statement, and
from time to time require Subscriber not to sell under the Registration Statement or suspend the use or effectiveness of any such Registration
Statement if (A) it determines in good faith that in order for the registration statement to not contain a material misstatement or omission,
an amendment thereto would be needed, (B) such filing or use would materially affect a bona fide business or financing transaction of
the Company or would require premature disclosure of information that would materially adversely affect the Company, or (C) in the good
faith judgment of the majority of the members of the Company’s board of directors, such filing or effectiveness or use of such
Registration Statement would be seriously detrimental to the Company, or (D) the majority of the board determines to delay the filing
or initial effectiveness of, or suspend use of, a Registration Statement and such delay or suspension arises out of, or is a result of,
or is related to or is in connection with the SEC Guidance or future Commission guidance directed at special purpose acquisition companies,
or any related disclosure or related matters (each such circumstance, a “Suspension Event”); provided, that,
(w) the Company shall not so delay filing or so suspend the use of the Registration Statement for a period of more than sixty consecutive
days or more than one hundred twenty total calendar days, or more than three times in any three hundred sixty day period and (x) the
Company shall use commercially reasonable efforts to make such registration statement available for the sale by Subscriber of such securities
as soon as practicable thereafter.
(d)
Upon receipt of any written notice from the Company (which notice shall not contain any material non-public
information regarding the Company) of the happening of (i) an issuance by the Commission of any stop order suspending the effectiveness
of any Registration Statement or the initiation of any proceedings for such purpose, which notice shall be given no later than three
Business Days from the date of such event, (ii) any Suspension Event during the period that the Registration Statement is effective,
which notice shall be given no later than three Business Days from the date of such Suspension Event, or (iii) 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, Subscriber agrees that (1) it will immediately discontinue offers and sales of the Subscribed
Shares under the Registration Statement until Subscriber 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 (2) it will maintain the
confidentiality of any information included in such written notice delivered by the Company unless otherwise required by law, subpoena
or regulatory request or requirement. If so directed by the Company, Subscriber will deliver to the Company or, in Subscriber’s
sole discretion destroy, all copies of the prospectus covering the Subscribed Shares in Subscriber’s possession; provided, however,
that this obligation to deliver or destroy all copies of the prospectus covering the Subscribed Shares shall not apply (w) to the extent
Subscriber 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 (x) to copies stored electronically
on archival servers as a result of automatic data back-up.
(e)
For purposes of this Section 5 of this Subscription Agreement, (i) “Subscribed Shares”
shall mean, as of any date of determination, the Subscribed Shares (as defined in the recitals to this Subscription Agreement) and any
other equity security issued or issuable with respect to the Subscribed Shares by way of stock split, dividend, distribution, recapitalization,
merger, exchange, or replacement, and (ii) “Subscriber” shall include any person to which the rights under this Section
5 shall have been duly assigned.
(f)
The Company shall, notwithstanding any termination of this Subscription Agreement, indemnify, defend and
hold harmless Subscriber, (to the extent Subscriber is a seller under the Registration Statement), the officers, directors, members,
managers, partners, agents and employees of Subscriber, each person who controls Subscriber (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, managers, partners, agents and employees of each
such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities,
costs (including, without limitation, reasonable and documented attorneys’ fees) and expenses (collectively, “Losses”)
arising out of or caused by or 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 form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or 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, or (ii) any violation or alleged violation by the Company of the Securities Act, Exchange
Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this
Section 5, except, in each case, to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions
are (1) based upon information regarding Subscriber furnished in writing to the Company by or on behalf of Subscriber expressly for use
therein or Subscriber has omitted a material fact from such information or (2) result from or in connection with any offers or sales
effected by or on behalf of Subscriber in violation of Section 5(d). Notwithstanding the foregoing, the Company’s indemnification
obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written
consent of the Company (which consent shall not be unreasonably withheld or delayed). Upon the request of Subscriber, the Company shall
provide Subscriber with an update on any threatened or asserted proceedings arising from or in connection with the transactions contemplated
by this Section 5 of which the Company receives notice in writing.
(g)
Subscriber shall indemnify and hold harmless the Company, its directors, officers, members, managers, partners,
agents and employees, each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, members, managers, partners, agents or employees of such controlling persons, to the
fullest extent permitted by applicable law, from and against all Losses arising out of or 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 any form of prospectus,
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, alleged untrue statements, omissions or alleged omissions are based upon information
regarding Subscriber furnished in writing to the Company by or on behalf of Subscriber expressly for use therein. In no event shall the
liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Subscribed
Shares giving rise to such indemnification obligation. Notwithstanding the forgoing, Subscriber’s indemnification obligation shall
not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Subscriber
(which consent shall not be unreasonably withheld or delayed) nor shall Subscriber be liable for any Losses to the extent they arise
out of or are based upon a violation which occurs in reliance upon and in conformity with written information furnished by the Company.
(h)
Any person or entity 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 or entity’s right to indemnification hereunder to the extent such failure has not 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, conditioned or delayed).
An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees
and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified
parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of
any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid
by the indemnifying party pursuant to the terms of such settlement), which settlement shall not include a statement or admission of fault
and culpability on the part of such indemnified party, and which settlement shall 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.
(i)
The indemnification provided for under this Subscription Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person or entity
of such indemnified party and shall survive the transfer of the Subscribed Shares pursuant to this Subscription Agreement.
(j)
If the indemnification provided under this Section 5 from the indemnifying party is unavailable
or insufficient to hold harmless an indemnified party in respect of any Losses, 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 in such proportion
as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable
considerations; provided, however, that the liability of Subscriber shall be limited to the net proceeds received by such
Subscriber from the sale of Subscribed Shares giving rise to such indemnification obligation. The relative fault of the indemnifying
party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by,
in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), or on behalf of
such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge,
access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses
shall be deemed to include, subject to the limitations set forth in this Section 5, any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(j) from
any person or entity who was not guilty of such fraudulent misrepresentation. Notwithstanding anything to the contrary herein, in no
event will any party be liable for punitive damages in connection with this Subscription Agreement or the transactions contemplated hereby.
Section
6. Termination. This Subscription Agreement shall terminate and be void and of no further force
and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any
party in respect thereof, upon the earliest to occur of (a) such date and time as the Transaction Agreement is terminated in accordance
with its terms, and (b) the mutual written agreement of the parties hereto to terminate this Subscription Agreement, and; provided,
that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party
will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. The Company
shall notify Subscriber of the termination of the Transaction Agreement promptly after the termination thereof. Upon the termination
hereof in accordance with this Section 6, any monies paid by Subscriber to the Company in connection herewith shall promptly (and in any
event within one Business Day) be returned in full to Subscriber by wire transfer of U.S. dollars in immediately available funds to the
account specified by Subscriber, without any deduction for or on account of any tax withholding, charges or set-off, whether or not the
Transactions shall have been consummated.
Section
7. Trust Account Waiver. Subscriber hereby acknowledges that, as described in the Company’s
prospectus relating to its initial public offering (the “IPO”) dated February 10, 2022 available at www.sec.gov, the
Company has established a trust account (the “Trust Account”) containing the proceeds of the IPO and from certain
private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the
Company, its public stockholders and certain other parties (including the underwriters of the IPO), and that, except as otherwise described
in such prospectus, the Company may disburse monies from the Trust Account only to (x) its public stockholders in the event they elect
to have their shares of Common Stock redeemed for cash in connection with the consummation of the Company’s initial business combination,
an amendment to its Charter to extend the deadline by which the Company must consummate its initial business combination, or the Company’s
failure to consummate an initial business combination by such deadline, (y) pay certain taxes from time to time, or (z) the Company after
or concurrently with the consummation of its initial business combination. 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 are hereby acknowledged,
Subscriber, on behalf of itself and its affiliates, hereby (a) agrees that it does not now and shall not at any time hereafter have any
right, title, interest or claim of any kind in or to any assets held in the Trust Account, and shall not make any claim against the Trust
Account, arising out or as a result of, in connection with or relating in any way to this Subscription Agreement, and regardless of whether
such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred
to hereafter as the “Released Claims”), (b) irrevocably waives any Released Claims that it may have against the Trust
Account now or in the future as a result of, or arising out of, this Subscription Agreement, and (c) will not seek recourse against the
Trust Account as a result of, in connection with or relating in any way to this Subscription Agreement. Subscriber acknowledges and agrees
that such irrevocable waiver is a material inducement to the Company to enter into this Subscription Agreement, and further intends and
understands such waiver to be valid, binding, and enforceable against Subscriber in accordance with applicable law. To the extent Subscriber
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, Subscriber
hereby acknowledges and agrees that its sole remedy shall be against funds held outside of the Trust Account and that such claim shall
not permit Subscriber (or any person claiming on Subscriber’s behalf or in lieu of Subscriber) to have any claim against the Trust
Account (including any distributions therefrom) or any amounts contained therein. Nothing in this Section 7 shall be deemed to
limit Subscriber’s right to distributions from the Trust Account in accordance with the Company’s Charter in respect of any
redemptions by Subscriber in respect of Common Stock acquired by any means other than pursuant to this Subscription Agreement. Notwithstanding
anything in this Subscription Agreement to the contrary, the provisions of this Section 7 shall survive termination of this Subscription
Agreement.
Section
8. Miscellaneous.
(a)
All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice,
request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii)
when sent by electronic mail, with no mail undeliverable or other rejection notice, on the date of transmission to such recipient, if
sent on a Business Day prior to 5:00 p.m. New York City time, or on the Business Day following the date of transmission, if sent on a
day that is not a Business Day or after 5:00 p.m. New York City time on a Business Day, (iii) one Business Day after being sent to the
recipient via overnight mail by reputable overnight courier service (charges prepaid), or (iv) four Business Days after being mailed
to the recipient by certified or registered mail, return receipt requested and postage prepaid, and, in each case, addressed to the intended
recipient at its address specified on the signature page hereof or to such electronic mail address or address as subsequently modified
by written notice given in accordance with this Section 8(a). A courtesy electronic copy of any notice sent by methods (i), (iii),
or (iv) above shall also be sent to the recipient via electronic mail if an electronic mail address is provided in the applicable signature
page hereof or to an electronic mail address as subsequently modified by written notice given in accordance with this Section 8(a).
(b)
Subscriber acknowledges that the Company and others, including after the Closing, will rely on the acknowledgments,
understandings, agreements, representations and warranties of Subscriber contained in this Subscription Agreement; provided, however,
that the foregoing clause of this Section 8(b) shall not give the Company any rights other than those expressly set
forth herein. Prior to the Closing, Subscriber agrees to promptly notify the Company if it becomes aware that any of the acknowledgments,
understandings, agreements, representations and warranties of Subscriber set forth herein are no longer accurate in all material respects.
The Company acknowledges that Subscriber and the Acquired Companies will rely on the acknowledgments, understandings, agreements, representations
and warranties contained in this Subscription Agreement. Prior to the Closing, the Company agrees to promptly notify Subscriber and the
Acquired Companies if they become aware that any of the acknowledgments, understandings, agreements, representations and warranties of
the Company set forth herein are no longer accurate in all material respects.
(c)
Each of the Company and Subscriber is irrevocably authorized to produce this Subscription Agreement or
a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered
hereby.
(d)
Each party hereto shall pay all of its own expenses in connection with this Subscription Agreement and
the transactions contemplated herein.
(e)
Neither this Subscription Agreement nor any rights that may accrue to Subscriber hereunder (other than
the Subscribed Shares acquired hereunder and the rights set forth in Section 5) may be transferred or assigned by Subscriber.
Neither this Subscription Agreement nor any rights that may accrue to the Company hereunder may be transferred or assigned by the Company
without the prior written consent of Subscriber, other than in connection with the Transactions. Notwithstanding the foregoing, Subscriber
may assign all or a portion of its rights and obligations under this Subscription Agreement to one or more of its affiliates (including
other investment funds or accounts managed or advised by the investment manager who acts on behalf of Subscriber) upon written notice
to the Company or, with the Company’s prior written consent, to another person; provided, that in the case of any such assignment,
the assignee(s) shall become a Subscriber hereunder and have the rights and obligations and be deemed to make the representations and
warranties of Subscriber provided for herein to the extent of such assignment and provided further that no such assignment shall
relieve the assigning Subscriber of its obligations hereunder if any such assignee fails to perform such obligations, unless the Company
has given their prior written consent to such relief.
(f)
All the agreements, representations and warranties made by each party hereto in this Subscription Agreement
shall survive the Closing.
(g)
The Company may request from Subscriber such additional information as the Company may reasonably deem
necessary to evaluate the eligibility of Subscriber to acquire the Subscribed Shares and to register the Subscribed Shares for resale,
and Subscriber shall promptly provide such information as may be reasonably requested, to the extent readily available and to the extent
consistent with its internal policies and procedures; provided, that the Company agrees to keep any such information provided
by Subscriber confidential, except (A) as required by the federal securities laws, rules or regulations and (B) to the extent such disclosure
is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations
of the Stock Exchange. Subscriber acknowledges that the Company may file a form of this Subscription Agreement with the Commission as
an exhibit to a current or periodic report of the Company, a proxy statement of the Company or a registration statement of the Company.
(h)
This Subscription Agreement may not be amended, modified or waived except by an instrument in writing,
signed by each of the parties hereto.
(i)
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.
(j)
Except as otherwise provided herein, this Subscription Agreement is intended for the benefit of the parties
hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns and is not for the benefit
of, nor may any provision hereof be enforced by, any other person. Except as set forth in Section 4, Section 5, Section
6, Section 8(b), Section 8(c), Section 8(e), Section 8(h) and this Section 8(j) 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 successors and assigns.
(k)
The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the
provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached and that
money or other legal remedies would not be an adequate remedy for such damage. It is accordingly agreed that the parties shall be entitled
to equitable relief, including in the form of an injunction or injunctions to prevent breaches or threatened 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 parties hereto acknowledge and agree that the
Company shall be entitled to specifically enforce Subscriber’s obligations to fund the Subscription and the provisions of the Subscription
Agreement, in each case, on the terms and subject to the conditions set forth herein. The parties hereto further acknowledge and agree:
(x) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy; (y) not to assert
that a remedy of specific enforcement pursuant to this Section 8(k) is unenforceable, invalid, contrary to applicable law or inequitable
for any reason; and (z) to waive any defenses in any action for specific performance, including the defense that a remedy at law would
be adequate.
(l)
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.
(m)
No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription
Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such
party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment
or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver
of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription
Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without
such notice or demand.
(n)
This Subscription Agreement may be executed and delivered in one or more counterparts (including by electronic
mail, in .pdf or other electronic submission) 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.
(o)
This Subscription Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other
state.
(p)
EACH PARTY HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OR RELATED TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT
A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION
OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF THIS SUBSCRIPTION AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS SUBSCRIPTION AGREEMENT.
(q)
The parties agree that all disputes, legal actions, suits and proceedings arising out of or relating to
this Subscription Agreement must be brought exclusively in the Court of Chancery of the State of Delaware and any state appellate court
therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a
particular matter, any federal court within the State of Delaware or, in the event each federal court within the State of Delaware declines
to accept jurisdiction over a particular matter, any state court within the State of Delaware) (collectively the “Designated
Courts”). Each party hereby consents and submits to the exclusive jurisdiction of the Designated Courts. No legal action, suit
or proceeding with respect to this Subscription Agreement may be brought in any other forum. Notwithstanding the foregoing, a final judgement
in any such action may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party
hereby irrevocably waives all claims of immunity from jurisdiction, and any objection which such party may now or hereafter have to the
laying of venue of any suit, action or proceeding in any Designated Court, including any right to object on the basis that any dispute,
action, suit or proceeding brought in the Designated Courts has been brought in an improper or inconvenient forum or venue. Each of the
parties also agrees that delivery of any process, summons, notice or document to a party hereof in compliance with Section 8(a)
of this Subscription Agreement shall be effective service of process for any action, suit or proceeding in a Designated Court with respect
to any matters to which the parties have submitted to jurisdiction as set forth above.
(r)
This Subscription Agreement may only be enforced against, and any claim, action, suit or other legal proceeding
based upon, arising out of, or related to this Subscription Agreement, or the negotiation, execution or performance of this Subscription
Agreement, may only be brought against the entities that are expressly named as parties hereto.
(s)
The Company shall no later than the day of the first public announcement by the Company of the entry into
the Transaction Agreement, file with the Commission a Current Report on Form 8-K (the “Disclosure Document”) disclosing
all material terms of this Subscription Agreement and the transactions contemplated hereby and thereby, the Transactions and any other
material, nonpublic information that the Company has provided to Subscriber at any time prior to the filing of the Disclosure Document
and including as exhibits to the Disclosure Document, the form of this Subscription Agreement (without redaction). Upon the issuance
of the Disclosure Document, to the Company’s knowledge, Subscriber shall not be in possession of any material, non-public information
received from the Company or any of its affiliates, officers, directors, or employees or agents, unless otherwise agreed by Subscriber.
Notwithstanding anything in this Subscription Agreement to the contrary, each of the Company (i) shall not publicly disclose the name
of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any press
release, without the prior written consent of Subscriber and (ii) shall not publicly disclose the name of Subscriber or any of its affiliates
or advisers, or include the name of Subscriber or any of its affiliates or advisers in any filing with the Commission or any regulatory
agency or trading market, without the prior written consent of Subscriber, except (A) as required by the federal securities laws, rules
or regulations and (B) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of
the Commission or regulatory agency or under the regulations of the Stock Exchange, in which case of clause (A) or (B), the Company,
as applicable, shall provide Subscriber with prior written notice (including by e-mail) of such permitted disclosure, and shall reasonably
consult with Subscriber regarding such disclosure. Subscriber will promptly provide any information reasonably requested by the Company
for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the Commission).
(t)
If any change in the Common Stock shall occur between the date of this Subscription Agreement and the Closing
by reason of any reclassification, recapitalization, stock split, reverse stock split, combination, exchange, or readjustment of shares,
or any share dividend, the number of Subscribed Shares issued to Subscriber hereunder shall be appropriately adjusted to reflect such
change.
(u)
The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations
of any other investor, and Subscriber shall not be responsible in any way for the performance of the obligations of any other investor.
The decision of Subscriber to purchase Subscribed Shares pursuant to this Subscription Agreement has been made by Subscriber independently
of any other investor and independently of any information, materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company, Target or any
of their respective affiliates or subsidiaries which may have been made or given by any other investor or by any agent or employee of
any other investor, and neither Subscriber nor any of its agents or employees shall have any liability to any other investor (or any
other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein, and no action
taken by Subscriber or other investor pursuant hereto, shall be deemed to constitute Subscriber and any other investors as a partnership,
an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and other investors are in any way
acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement. Subscriber
acknowledges that no other person has acted as agent for Subscriber in connection with making its investment hereunder and no other person
will be acting as agent of Subscriber in connection with monitoring its investment in the Subscribed Shares or enforcing its rights under
this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including without limitation
the rights arising out of this Subscription Agreement, and it shall not be necessary for any other investor to be joined as an additional
party in any proceeding for such purpose.
(v)
The headings herein are for convenience only, do not constitute a part of this Subscription Agreement and
shall not be deemed to limit or affect any of the provisions hereof. The language used in this Subscription Agreement will be deemed
to be the language chosen by the parties hereto to express their mutual intent, and no rules of strict construction will be applied against
any party. Unless the context otherwise requires, (i) all references to Sections, Schedules or Exhibits are to Sections, Schedules or
Exhibits contained in or attached to this Subscription Agreement, (ii) each accounting term not otherwise defined in this Subscription
Agreement has the meaning assigned to it in accordance with GAAP, (iii) words in the singular or plural include the singular and plural
and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (iv) the
use of the word “including” in this Subscription Agreement shall be by way of example rather than limitation, and (v) the
word “or” shall not be exclusive.
[Signature
pages follow.]
IN
WITNESS WHEREOF, the Company has accepted this Subscription Agreement as of the date first set forth above.
|
HNR
Acquisition Corp |
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By: |
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Name: |
Mitchell
B. Trotter |
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Title: |
Chief Financial
Officer |
Address
for Notices:
HNR
Acquisition Corp
3730
Kirby Drive, Suite 1200
Houston,
Texas 77098
Attention:
Mitchell B. Trotter, CFO
Email:
mbtrotter@comcast.net
With
a copy to:
Pryor
Cashman LLP
7
Times Square
New
York, New York 10036
Attention
Matthew Ogurick
Email:
mogurick@pryorcashman.com
HNR
Acquisition Corp
3730
Kirby Drive, Suite 1200
Houston,
Texas 77098
Attention:
David M. Smith, General Counsel
Email:
dmsmith@hnra-nyse.com
[Signature
Page to Subscription Agreement]
IN
WITNESS WHEREOF, Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative
as of the date set forth below.
Name
of Subscriber:
Name in which Subscribed Shares
are to be registered
(if different): |
Date: |
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EIN |
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Attention:
Telephone
No.:
Email
for notices:
Number
of Shares of Common Stock subscribed for:
Maximum
Number of Shares less the Recycled Shares
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Price Per Share: Initial Price |
Subscriber |
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Percentage of Subscribed Shares
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[Signature
Page to Subscription Agreement]
Annex
A
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
This
Annex A should be completed and signed by Subscriber
and constitutes a part of the Subscription Agreement.
| 1. | QUALIFIED
INSTITUTIONAL BUYER STATUS (Please check the box, if applicable) |
| ☐ | Subscriber
is a “qualified institutional buyer” (as defined in Rule 144A under the Securities
Act) (a “QIB”) |
| ☐ | We
are subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor
accounts, and each owner of such account is a QIB. |
**OR**
| 2. | ACCREDITED
INVESTOR STATUS (Please check the box) |
| ☐ | Subscriber
is an “accredited investor” (within the meaning of Rule 501(a) under the Securities
Act) or an entity in which all of the equity holders are accredited investors within the
meaning of Rule 501(a) under the Securities Act, and has marked and initialed the appropriate
box below indicating the provision under which it qualifies as an “accredited investor.” |
**AND**
| 3. | AFFILIATE
STATUS
(Please check the applicable box) |
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.
Rule
501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed
categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities
to that person. Subscriber has indicated, by marking and initialing the appropriate box(es) below, the provision(s) below which apply
to Subscriber and under which Subscriber accordingly qualifies as an “accredited investor.”
| ☐ | Any
bank, registered broker or dealer, insurance company, registered investment company, business
development company, small business investment company, private business development company,
or rural business investment company; |
| ☐ | Any
investment adviser registered pursuant to section 203 of the Investment Advisers Act or registered
pursuant to the laws of a state; |
| ☐ | Any
investment adviser relying on the exemption from registering with the Commission under section
203(l) or (m) of the Investment Advisers Act; |
| ☐ | Any
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 such plan has total assets in excess of $5,000,000; |
| ☐ | Any
employee benefit plan within the meaning of Title I of the Employee Retirement Income Security
Act of 1974 (“ERISA”), if (i) the investment decision is made by a plan fiduciary,
as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association,
an insurance company, or a registered investment adviser, (ii) the employee benefit plan
has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with
investment decisions made solely by persons that are “accredited investors”; |
| ☐ | Any
(i) corporation, limited liability company or partnership, (ii) Massachusetts or similar
business trust, or (iii) organization described in section 501(c)(3) of the Internal Revenue
Code, in each case that was not formed for the specific purpose of acquiring the securities
offered and that has total assets in excess of $5,000,000; |
| ☐ | Any
trust, with total assets in excess of $5,000,000, not formed for the specific purpose of
acquiring the securities offered, whose purchase is directed by a sophisticated person as
described in Section 230.506(b)(2)(ii) of Regulation D under the Securities Act; |
| ☐ | Any
entity, other than an entity described in the categories of “accredited investors”
above, not formed for the specific purpose of acquiring the securities offered, owning investments
in excess of $5,000,000; |
| ☐ | Any
“family office,” as defined under the Investment Advisers Act that satisfies
all of the following conditions: (i) with assets under management in excess of $5,000,000,
(ii) that is not formed for the specific purpose of acquiring the securities offered, and
(iii) whose prospective investment is directed by a person who has such knowledge and experience
in financial and business matters that such family office is capable of evaluating the merits
and risks of the prospective investment; |
| ☐ | Any
“family client,” as defined under the Investment Advisers Act, of a family office
meeting the requirements in the previous paragraph and whose prospective investment in the
issuer is directed by such family office pursuant to the previous paragraph; or |
| ☐ | Any
entity in which all of the equity owners are “accredited investors”. |
Specify
which tests:
| ☐ | Any
director, executive officer, or general partner of the issuer of the securities being offered
or sold, or any director, executive officer, or general partner of a general partner
of that issuer; |
| ☐ | Any
natural person whose individual net worth, or joint net worth with that person’s spouse
or spousal equivalent, exceeds $1,000,000. For purposes of calculating a natural person’s
net worth: (a) the person’s primary residence shall not be included as an asset;
(b) indebtedness that is secured by the person’s primary residence, up to the estimated
fair market value of the primary residence at the time of the sale of securities, shall not
be included as a liability (except that if the amount of such indebtedness outstanding at
the time of sale of securities exceeds the amount outstanding 60 days before such time, other
than as a result of the acquisition of the primary residence, the amount of such excess shall
be included as a liability); and (c) indebtedness that is secured by the person’s primary
residence in excess of the estimated fair market value of the primary residence at the time
of the sale of securities shall be included as a liability; |
| ☐ | Any
natural person who had an individual income in excess of $200,000 in each of the two most
recent years or joint income with that person’s spouse or spousal equivalent in excess
of $300,000 in each of those years and has a reasonable expectation of reaching the same
income level in the current year; |
| ☐ | Any
natural person holding in good standing one or more professional certifications or designations
or credentials from an accredited educational institution that the Commission has designated
as qualifying an individual for accredited investor status; or |
| ☐ | Any
natural person who is a “knowledgeable employee,” as defined in the Investment
Company Act, of the issuer of the securities being offered or sold where the issuer would
be an investment company, as defined in section 3 of such act, but for the exclusion provided
by either section 3(c)(1) or section 3(c)(7) of such act. |
This
page should be completed by Subscriber and constitutes a part of the Subscription Agreement.
SUBSCRIBER:
[NAME
OF SUBSCRIBER]
Exhibit 99.1
HNR Acquisition Corp Announces
Special Meeting of Shareholders
to Approve Business Combination Adjourned until
November 13, 2023
HOUSTON, TX / November 3, 2023 / HNR Acquisition Corp (NYSE American:
HNRA) (the “Company” or “HNRA”) a special purpose acquisition company filed a definitive proxy statement with
respect to a special meeting of its stockholders to be held on Monday, October 30, 2023 at 1:30 p.m. eastern (the “Special Meeting”)
to vote on, among other things, a proposal to adopt and approve that certain Amended and Restated Membership Interest Purchase Agreement
dated August 28, 2023, and the transactions contemplated thereby (the “Business Combination”).
The Company opened the Special Meeting and only considered the proposal
for adjournment. The Special Meeting was then adjourned. The Company has determined to reconvene the Special Meeting via a live web cast
on Monday, November 13, 2023 at 10:00 a.m. eastern. Only holders of record of shares of the SPAC Company’s common stock at the close
of business on October 10, 2023 (the record date), are entitled to vote.
Based upon the preliminary reports that have been provided to HNRA,
the holders of an aggregate of 4,480,725 public shares of HNRA’s common stock have submitted requests that their public shares be
redeemed in connection with the Special Meeting, with these redemptions only taking effect upon the closing of the Business Combination.
Shareholders will have the right to exercise their right to redemption until 5:00 p.m. eastern on November 9, 2023 (the second business
day prior to the Special Meeting).
About HNR Acquisition Corp
HNRA is a blank check company (otherwise known
as a special purpose acquisition company or SPAC) formed for the purpose of effecting a merger, share exchange, asset acquisition, share
purchase, reorganization or similar business combination with one or more businesses or entities.
For more information on HNRA, the acquisition
and the transaction, please visit the Company website: https://www.hnra-nyse.com/
Forward-Looking Statements
This press release includes "forward-looking
statements" that involve risks and uncertainties that could cause actual results to differ materially from what is expected, including
the funding of the Trust Account to further extend the period for the Company to consummate an initial business combination, if needed.
Words such as "expects," "believes," "anticipates," "intends," "estimates," "seeks,"
"may," "might," "plan," "possible," "should" and variations and similar words and expressions
are intended to identify such forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking.
Such forward-looking statements relate to future events or future results, based on currently available information and reflect the Company's
management's current beliefs. A number of factors could cause actual events or results to differ materially from the events and results
discussed in the forward-looking statements. Important factors - including the availability of funds, the results of financing efforts
and the risks relating to our business - that could cause actual results to differ materially from the Company's expectations are disclosed
in the Company's documents filed from time to time on EDGAR (see www.edgar-online.com) and with the Securities and Exchange Commission
(see www.sec.gov). Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date
of this press release. In addition, please refer to the Risk Factors section of the Company's Form 10-K as filed with the SEC on March
31, 2023 and the Risk Factors section of the definitive proxy statement filed on Schedule 14A on October 13, 2023 for additional information
identifying important factors that could cause actual results to differ materially from those anticipated in the forward-looking statements.
Except as expressly required by applicable securities law, the Company disclaims any intention or obligation to update or revise any forward-looking
statements whether as a result of new information, future events or otherwise.
Investor Relations
Michael J. Porter, President
PORTER, LEVAY & ROSE, INC.
mike@plrinvest.com
v3.23.3
Cover
|
Oct. 30, 2023 |
Document Type |
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|
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|
Document Period End Date |
Oct. 30, 2023
|
Entity File Number |
001-41278
|
Entity Registrant Name |
HNR ACQUISITION CORP
|
Entity Central Index Key |
0001842556
|
Entity Tax Identification Number |
85-4359124
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
3730 Kirby Drive
|
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Suite 1200
|
Entity Address, City or Town |
Houston
|
Entity Address, State or Province |
TX
|
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Common stock, par value $0.0001 per share |
|
Title of 12(b) Security |
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|
Trading Symbol |
HNRA
|
Security Exchange Name |
NYSEAMER
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Redeemable warrants, exercisable for three quarters of one share of common stock at an exercise price of $11.50 per share |
|
Title of 12(b) Security |
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