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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): August 29, 2023
AgeX
Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
1-38519 |
|
82-1436829 |
| (State
or other jurisdiction |
|
(Commission |
|
(IRS
Employer |
| of
incorporation) |
|
File
Number) |
|
Identification
No.) |
1101
Marina Village Parkway
Suite
201
Alameda,
California 94501
(Address
of principal executive offices)
(510)
671-8370
(Registrant’s
telephone number, including area code)
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol |
|
Name
of exchange on which registered |
| Common
Stock, par value $0.0001 per share |
|
AGE |
|
NYSE
American |
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)) |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item
1.01 - Entry in Material Definitive Agreement.
Summary
of Merger Agreement and Transaction
On
August 29, 2023, AgeX Therapeutics, Inc. (“AgeX”) entered into an Agreement and Plan of Merger and Reorganization
(the “Merger Agreement”) with Serina Therapeutics Inc., an Alabama corporation (“Serina”),
and Canaria Transaction Corporation, an Alabama corporation and wholly owned subsidiary of AgeX (“Merger Sub”).
Serina currently has a pipeline of small molecule candidates targeting central nervous system (“CNS”) indications,
enabled by the company’s proprietary POZ PlatformTM delivery technology. In addition to advancing Serina’s wholly
owned pipeline assets, Serina is working with pharma partners currently advancing pre-clinical studies exploring POZ polymer lipid-nanoparticles
(“LNPs”) in next generation LNP delivered RNA vaccines. In addition, Serina is advancing a lead drug candidate,
SER-252 (POZ-apomorphine) for the treatment of advanced Parkinson’s Disease through pre-clinical studies towards the goal of an
investigational new drug submission or “IND” to the Food and Drug Administration for the initiation of a Phase I clinical
trial during the fourth quarter of 2024. Serina has two other pipeline assets that are positioned to enter IND enabling studies, SER-227
(POZ-buprenorphine) for certain post-operative pain indications, and SER-228 (POZ-cannabidiol) for treatment refractory epilepsy indications.
Serina is also focused on expanding its LNP and anti-body drug conjugate (“ADC”) partnering collaborations.
Upon
the terms and subject to the satisfaction of the conditions described in the Merger Agreement, Merger Sub will be merged with and into
Serina, with Serina surviving as a wholly owned subsidiary of AgeX (the “Merger”). The Merger is intended to
qualify as a tax-free reorganization for U.S. federal income tax purposes.
Certain
Provisions of the Merger Agreement
Conversion
of Shares
At
the effective time of the Merger (the “Merger Effective Time”): (i) each share of Serina capital stock outstanding
immediately prior to the Merger Effective Time after giving effect to the automatic conversion of all outstanding shares of Serina preferred
stock into Serina common stock, excluding any shares of Serina capital stock held by Serina, AgeX, Merger Sub or any of their respective
subsidiaries and any dissenting shares, will be automatically converted solely into the right to receive a number of shares of AgeX common
stock (the “Shares”) determined by the Exchange Ratio (as defined in the Merger Agreement); (ii) each option
to purchase shares of Serina capital stock (each, a “Serina Option”) that is outstanding and unexercised immediately
prior to the Merger Effective Time under Serina’s 2017 Stock Option Plan (the “Serina Plan”), whether
or not vested, will be converted into and become an option to purchase AgeX common stock, and AgeX will assume the Serina Plan and each
such Serina Option in accordance with the terms of the Serina Plan and the terms of the stock option agreement by which such Serina Option
is evidenced; and (iii) each warrant to purchase shares of Serina capital stock (each, a “Serina Warrant”)
that is outstanding and unexercised immediately prior to the Merger Effective Time will be converted into and become a warrant to purchase
AgeX common stock, and AgeX will assume each Serina Warrant in accordance with its terms.
Through
the application of the Exchange Ratio, the stockholders of AgeX immediately prior to the Merger are expected to own approximately 25%
of the aggregate number of outstanding shares of AgeX common stock immediately after the Merger Effective Time, and the stockholders
of Serina immediately prior to the Merger are expected to own approximately 75% of the aggregate number of outstanding shares of AgeX
common stock immediately after the Merger Effective Time, in each case on a fully-diluted basis, subject to certain assumptions, including
that all outstanding shares of AgeX preferred stock will convert into AgeX common stock prior to the Merger Effective Time.
Issuance
of Warrants
Prior
to the consummation of the Merger (the “Closing”), AgeX will issue to each AgeX stockholder three warrants
for each five shares of AgeX common stock held by such stockholder (each a “Post-Merger Warrant”). Each Post-Merger
Warrant will be exercisable for one unit at a price equal to $13.20 and will expire on July 31, 2025. Each unit will consist of (i) one
share of common stock of AgeX and (ii) one warrant (each such warrant, an “Incentive Warrant”) that will be
exercisable to purchase one share of common stock of AgeX at a price equal to $18.00 and that will expire on the four year anniversary
of the Closing. The terms of each Post-Merger Warrant and Incentive Warrant will be further detailed the forms of warrant agreements
that will be negotiated between the parties prior to the Closing.
Post-Closing
Directors and Officers
Following
the Closing, it is anticipated that the combined company will be led by a new Chief Executive Officer (“CEO”).
Serina’s current Chief Financial Officer (“CFO”), Steve Ledger, is expected to serve as the interim CEO
of the combined company until such time as the new CEO is hired. AgeX’s current CFO, Andrea Park, is expected to serve as the interim
CFO and the Chief Accounting Officer of the combined company until such time as the new CFO is hired, and is then expected to
continue in the role of Chief Accounting Officer. Randall Moreadith, current President and Chief Executive Officer of Serina,
is expected to serve as the Chief Scientific Officer of the combined company, and Tacey Viegas, the current Chief Operating Officer of
Serina, is expected to serve as the Chief Operating Officer and Secretary of the combined company. Additionally, following the
Closing, the board of directors of AgeX will consist of seven directors (i) one of whom shall be the Chief Executive Officer of AgeX
following the Closing, (ii) two of whom will be designated by Serina, (iii) two of whom will be designated by AgeX, and (iv) two of whom
shall be designated by mutual agreement of AgeX and Serina and shall meet the NYSE American director independence requirements. The board
of directors immediately after the Closing are expected to be Dr. J. Milton Harris, who is presently the chair of the board of directors
of Serina, Steve Ledger, Dr. Gregory Bailey, who is presently a director of both AgeX and Serina, Dr. Richard Marshall, who is presently
the Chief Executive Officer of Juvenescence, Remy Gross, who is currently the Vice President of Business and Technology Advancement
for the Buck Institute for Aging, and two vacancies, unless designated prior to the Merger Effective Time in accordance with the
Merger Agreement.
Representations,
Warranties and Closing Conditions
The
Merger Agreement contains customary representations, warranties and covenants made by each of Serina and AgeX, including customary non-solicitation
restrictions for each party.
The
Closing is subject to certain customary closing conditions, including, without limitation: (i) no order preventing the Merger and the
other transactions and actions contemplated by the Merger Agreement having been issued and remaining in effect and there being no law
which has the effect of making the consummation of Merger and the other transactions and actions contemplated by the Merger Agreement
illegal; (ii) the required approvals by the parties’ stockholders having been obtained; (iii) the existing shares of AgeX common
stock having been continually listed on the NYSE American and the Shares issued in connection with the Contemplated Transactions (as
defined in the Merger Agreement) being approved for listing on the NYSE American (subject to official notice of issuance); (iv) the Form
S-4 (as defined below) having become effective in accordance with the Securities Act of 1933, as amended (the “Securities
Act”); (v) the accuracy of each party’s representations and warranties, subject to certain materiality qualifications;
(vi) compliance by the parties with their respective covenants; (vii) no continuing Company Material Adverse Effect or Parent Material
Adverse Effect (each as defined in the Merger Agreement); (viii) the completion of a reverse stock split of all outstanding shares of
AgeX common stock for the purpose of resulting in approximately 2,500,000 shares of AgeX common stock being outstanding immediately prior
to the Merger Effective Time unless otherwise mutually agreed to by AgeX and Serina (“NYSE Reverse Split”);
(ix) Juvenescence Limited (“Juvenescence”) will have entered into a letter agreement (the “Side
Letter”); (x) Juvenescence will have converted all of its shares of AgeX preferred stock into shares of AgeX common stock
prior to the NYSE Reverse Split; (xi) the holders of Serina’s convertible promissory notes (other than AgeX) will have elected
to convert such notes into shares of Serina common stock prior to the Merger; (xii) the actual closing price of AgeX common stock immediately
prior to the Merger will not be less than $12.00 per share (taking into account the NYSE Reverse Split); (xiii) Juvenescence must hold
at least 1,133,308 Post-Merger Warrants; and (xiv) immediately prior to the Closing, AgeX will have on hand at least $500,000 of immediately
spendable non-restricted cash net of all payables and other liabilities.
Termination
Rights
The
Merger Agreement contains certain customary termination rights, including, without limitation: (i) the right of either AgeX or Serina
to terminate the Merger Agreement if the Contemplated Transactions (as defined in the Merger Agreement) have not been consummated by
February 29, 2024; (ii) the right of either AgeX or Serina to terminate the Merger Agreement if AgeX’s stockholders fail to adopt
and approve the Parent Stockholder Matters (as defined in the Merger Agreement); (iii) the right of AgeX to terminate the Merger Agreement
if Serina’s stockholders fail to adopt and approve the Company Stockholder Matters (as defined in the Merger Agreement); (iv) the
right of AgeX to terminate the Merger Agreement if the Serina board of directors changes or withdraws its recommendation that Serina
stockholders vote in favor of the Merger or recommends that Serina enter into an alternative transaction; (v) the right of Serina to
terminate the Merger Agreement if the AgeX board of directors changes or withdraws its recommendation that AgeX stockholders vote in
favor of the Merger or recommends that AgeX enter into an alternative transaction; (vi) the right of AgeX to terminate the Merger Agreement
in order to enter into an alternative transaction with respect to a Superior Offer (as defined in the Merger Agreement); (vii) the right
of AgeX to terminate the Merger Agreement if certain financial statements have not been provided by Serina to AgeX in accordance with
the terms of the Merger Agreement; (viii) the right of Serina to terminate the Merger Agreement if the Actual Closing Price (as defined
in the Merger Agreement) of a share of AgeX common stock is less than $12.00 (taking into account the NYSE Reverse Split), subject to
certain cure provisions; (ix) the right of Serina to terminate the Merger Agreement if Juvenescence holds fewer than 1,133,308 Post-Merger
Warrants, subject to certain cure provisions; and (x) the right of Serina to terminate the Merger Agreement if AgeX will have on hand
less than $500,000 of immediately spendable non-restricted cash, net of all payables and other liabilities, immediately prior to the
Closing, subject to certain cure provisions.
Upon
termination of the Merger Agreement by Serina or AgeX in certain circumstances, a termination fee of $1 million may be payable by Serina
to AgeX or a termination fee of $1 million may be payable by AgeX to Serina. Serina and AgeX have also agreed to reimburse the other
party for up to $1 million in expenses, as applicable, if the Merger Agreement is terminated in certain circumstances, as further described
in the Merger Agreement; provided that neither party will be responsible for payment of more than $1 million in the aggregate.
S-4
Filing
In
connection with the Merger, AgeX will prepare and file a registration statement on Form S-4 (the “Form S-4”)
to register under the Securities Act the Shares, Post-Merger Warrants, and Incentive Warrants to be issued pursuant to the Merger Agreement,
and the Shares issuable upon the exercise of those warrants. The Form S-4 will contain a proxy statement and prospectus and other relevant
documents concerning the Merger. Pursuant to the proxy statement and prospectus, which will be mailed to AgeX stockholders of record
on a record date to be set by the AgeX board of directors, AgeX will seek the approval of AgeX’s stockholders to, among other things,
approve: (i) an amendment to AgeX’s certificate of incorporation to effect the NYSE Reverse Split; (ii) the Merger, including the
issuance of the Shares to Serina stockholders at Closing; (iii) issuing Post-Merger Warrants and Incentive Warrants, (iv) the disposition
of certain AgeX assets in connection with the Merger, (v) the amendment and restatement of AgeX’s certificate of incorporation,
(vi) the adoption of a new equity incentive plan, along with the reservation of 1,725,000 shares of AgeX’s common stock for use
under the new equity incentive plan, and (vii) Juvenescence converting shares of AgeX Series B Preferred Stock into an amount of shares
of AgeX common stock that would (a) exceed 19.9% of the shares of AgeX common stock outstanding as determined in accordance with Section
712(b) of the NYSE American Company Guide at the time the Series B Preferred Stock was issued, and (b) result in a change of control
of AgeX as determined in accordance with the NYSE American Company Guide (collectively, the “AgeX Stockholder Matters”).
Support
Agreements
Concurrently
with the execution of the Merger Agreement, Juvenescence, a stockholder of AgeX holding 43.34% of the outstanding shares of common stock
of AgeX, 100% of the outstanding shares of Series A preferred stock of AgeX, and 100% of the outstanding shares of Series B preferred
stock of AgeX, entered into a support agreement (the “AgeX Support Agreement”) in favor of Serina, providing,
among other things, that such stockholders will vote all of their shares of AgeX capital stock: (i) in favor of adopting the Merger Agreement
and approving the Merger, the AgeX Stockholder Matters, and the other transactions and actions contemplated by the Merger Agreement,
(ii) against any proposal made in opposition to, or in competition with, the Merger Agreement or the Merger and (iii) against any acquisition
proposal involving a third party other than Serina.
Concurrently
with the execution of the Merger Agreement, certain stockholders of Serina holding 100% of the outstanding shares of common
stock of Serina, 100% of the outstanding shares of Series A preferred stock of Serina, 100% of the outstanding shares of Series A-1 preferred
stock of Serina, 97.442% of the outstanding shares of Series A-2 preferred stock of Serina, 100% of the outstanding shares of Series
A-3 preferred stock of Serina, 100% of the outstanding shares of Series A-4 preferred stock of Serina, and 98.57% of the outstanding
shares of Series A-5 preferred stock of Serina entered into support agreements (the “Serina Support Agreements”)
in favor of AgeX, providing, among other things, that such stockholders will vote all of their shares of Serina capital stock: (i) in
favor of adopting the Merger Agreement and approving the Merger, the Company Stockholder Matters (as defined in the Merger Agreement),
and the other transactions and actions contemplated by the Merger Agreement, (ii) against any proposal made in opposition to, or in competition
with, the Merger Agreement or the Merger and (iii) against any acquisition proposal involving a third party other than AgeX.
Lock-Up
Agreements
Concurrently
with the execution of the Merger Agreement, (i) certain executive officers, directors and stockholders of Serina and (ii) certain stockholders
of AgeX entered into lock-up agreements (the “Lock-Up Agreements”), pursuant to which such persons accepted
certain restrictions on transfers of the shares of AgeX common stock held by such persons for the 180-day period following the Merger
Effective Time.
Side
Letter
Concurrently
with the execution of the Merger Agreement, AgeX, Serina and Juvenescence entered into the Side Letter, which will become effective immediately
prior to the Closing. The Side Letter will provide that (i) effective immediately before the Effective Time, Juvenescence will cancel
all Out of the Money Parent Warrants (as defined in the Merger Agreement) held by Juvenescence; (ii) to provide the combined company
an additional $15 million in capital, Juvenescence will exercise all Post-Merger Warrants it holds according to the following schedule:
(x) at least one third on or before May 31, 2024, (y) at least one third on or before November 30, 2024, and (z) at least one third on
or before June 30, 2025; (iii) AgeX and Serina shall use reasonable best efforts to appoint certain directors, including Steve Ledger
and Dr. J. Milton Harris, who are each affiliated with Serina, and Dr. Gregory Bailey and Dr. Richard Marshall,
who are each affiliated with Juvenescence, effective as of the Effective Time; (iv) Juvenescence will not sell any shares of AgeX Series
A Preferred Stock or Series B Preferred Stock and will take all actions necessary to convert all of such preferred stock into AgeX common
stock before the NYSE Reverse Split; (v) Juvenescence will release all security interests, guarantees, pledges, assignments and other
forms of collateral that it may have in AgeX’s assets pursuant to the terms of certain loans to AgeX; and (vi) Juvenescence will
consent to a newly formed subsidiary of AgeX assuming AgeX’s obligations with respect to loans agreements and promissory notes
governing loans payable to Juvenescence, including obligations for amounts currently owed and future advances of loan funds, and Juvenescence
shall release AgeX from those loan obligations.
Incorporation
of Exhibits by Reference
The
foregoing descriptions of the Merger Agreement, the AgeX Support Agreement, the Serina Support Agreements and the Lock-Up Agreements
(collectively, the “Merger Transaction Agreements”), and the foregoing description of the Side Letter are summaries
only, do not purport to be complete and are qualified in their entirety by reference to those agreements, which are filed as Exhibits
2.1, 10.1, 10.2, 10.3, 10.4, and 10.5 respectively, to this Current Report on Form 8-K and incorporated herein by reference. In particular,
the assertions embodied in the representations and warranties contained in the Merger Agreement are qualified by information in confidential
disclosure schedules provided by each of AgeX and Serina in connection with the signing of the Merger Agreement. These confidential disclosure
schedules contain information that modifies, qualifies and creates exceptions to the representations and warranties and certain covenants
set forth in the Merger Agreement. Moreover, certain representations and warranties in the Merger Transaction Agreements were used for
the purpose of allocating risk between the parties thereto rather than establishing matters as facts. Accordingly, the representations
and warranties in the Merger Transaction Agreements should not be relied upon as characterizations of the actual state of facts about
AgeX or Serina.
Item
7.01 Regulation FD Disclosure
Press
Release
On
August 29, 2023, AgeX and Serina issued a joint press release announcing the execution of the Merger Agreement. The press release is
furnished as Exhibit 99.1 to this Current Report on Form 8-K. The information in this Item 7.01 and in the press release furnished as
Exhibit 99.1 shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and is not to be incorporated by reference into any filing of the registrant under the
Securities Act or the Exchange Act, whether made before or after the date hereof, regardless of any general incorporation language in
any such filing, except as shall be expressly set forth by specific reference in such a filing.
Cautionary
Statement Regarding Forward-Looking Statements
Certain
statements contained in this communication regarding matters that are not historical facts are forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act, as amended, and the Private Securities Litigation Reform
Act of 1995, known as the PSLRA. These include statements regarding the anticipated completion and effects of the proposed Merger and
related timing, pro forma descriptions of the combined company, Serina’s and the combined company’s planned preclinical and
clinical programs, including planned clinical trials, the potential of Serina’s product candidates, the anticipated cash expected
from warrant exercises and the ability for proceeds to fund the operations of the combined company for as long as anticipated, the expected
trading of the combined company’s stock on the NYSE American under the ticker symbol “SER”, management of the combined
company and other statements regarding management’s intentions, plans, beliefs, expectations or forecasts for the future. All forward-looking
statements are based on assumptions or judgments about future events and economic conditions that may or may not be correct or necessarily
take place and that are by their nature subject to significant risks, uncertainties and contingencies. You are cautioned not to place
undue reliance on these forward-looking statements. No forward-looking statement can be guaranteed, and actual results may differ materially
from those projected. Statements that contain words such as “anticipates,” “believes,” “plans,” “expects,”
“projects,” “future,” “intends,” “may,” “will,” “should,” “could,”
“estimates,” “predicts,” “potential,” “continue,” “guidance,” and similar
expressions to identify these forward-looking statements that are intended to be covered by the safe-harbor provisions of the PSLRA.
There
are a number of risks and uncertainties that could cause actual results to differ materially from the forward-looking statements included
in this communication. With respect to the Merger, these risks and uncertainties include: the possibility that stockholders of AgeX or
Serina may not approve the Merger; one or more conditions to consummating the Merger may not be satisfied; one or more material agreements
that may be entered into in connection with the Merger may be terminated by a party to the agreement; AgeX or the combined company may
be unable to obtain approval to list on the NYSE American the shares of AgeX common stock expected to be issued pursuant to the Merger;
and the closing of the Merger might be delayed or not occur at all. In addition, the Merger could cause AgeX to face additional risks,
including risks associated with conducting and financing Serina’s current or future research and product development programs,
including risks that those research and development programs will not result in the development of products or technologies with the
desired clinical utility, benefits, or market acceptance; risks associated with conducting clinical trials of Serina product candidates
and obtaining Food and Drug Administration or other regulatory approvals to market product candidates, including risks with respect to
the timing of initiation of Serina’s planned clinical trials, the timing of the availability of data or other results from clinical
trials, and the timing of any planned investigational new drug application or new drug application; risks associated with the combined
company’s ability to identify additional products or product candidates with significant commercial potential; risks associated
with AgeX’s, Serina’s or the combined company’s ability to protect its intellectual property position; product liability
risks; the risk that the cash balance of the combined company following the closing of the Merger will be lower than expected or reduced;
the risk that the combined company’s anticipated sources and related timing of financing following the closing of the Merger will
not provide proceeds necessary to fund the operations of the combined company for as long as anticipated; the risk that the transactions
contemplated by the Side Letter are not completed in a timely manner or at all; risks associated with AgeX’s or Serina’s
estimates regarding future revenue, expenses, capital requirements, and need for additional financing following the Merger; risks associated
with the ability of AgeX and the combined company to remain listed on the NYSE American; the risk that products may not be successfully
commercialized or that the combined company might not otherwise be able to generate sufficient revenues to operate at a profit; potential
adverse changes to business or employee relationships, including those resulting from the announcement or completion of the Merger; the
risk that changes in AgeX’s capital structure, management, business, and governance following the Merger could have adverse effects
on the market value of its common stock; the ability of AgeX and Serina to retain customers and retain and hire key personnel and maintain
relationships with their suppliers and customers; risks associated with Serina’s or the combined company’s ability to successfully
collaborate with Serina’s existing collaborators or enter into new collaborations, or to fulfill its obligations under any such
collaboration agreements; risks associated with the combined company’s commercialization, marketing and manufacturing capabilities
and strategy; the risk that pursuing and completing the Merger and related transactions could distract AgeX and Serina management from
their respective ongoing business operations or cause AgeX and Serina to incur substantial costs; risks associated with competition and
developments in the industry in which the combined company will operate; the impact of world health events, including the COVID-19 pandemic
and any related economic downturn; the risk of changes in governmental regulations or enforcement practices; AgeX’s and Serina’s
ability to meet guidance, market expectations, and internal projections; the impact of AgeX stockholders having their percentage ownership
interests in AgeX reduced by the issuance of AgeX common stock to Serina stockholders in the Merger and by the issuance of shares of
AgeX common stock upon the exercise of Post-Merger Warrants by Juvenescence, and other important factors that could cause actual results
to differ materially from those projected or expected by AgeX management or stockholders. The effects of many of such factors are difficult
to predict and may be beyond AgeX’s or Serina’s control.
New
factors emerge from time to time, and it is not possible for us to predict all such factors, nor can we assess the impact of each such
factor on the business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from
those contained in any forward-looking statements. Additional factors that could cause actual results to differ materially from the results
anticipated in these forward-looking statements are contained in AgeX’s periodic reports filed with the U.S. Securities and Exchange
Commission (“SEC”) under the heading “Risk Factors” and other filings that AgeX may make with the
SEC. Forward-looking statements included in this communication are based on information available to AgeX and Serina as of the date of
this communication. Undue reliance should not be placed on these forward-looking statements that speak only as of the date they are made,
and except as required by law, AgeX and Serina each disclaims any intent or obligation to update these forward-looking statements.
Additional
Information and Where to Find It
In
connection with the proposed business combination transaction between AgeX and Serina, AgeX intends to file relevant materials with the
SEC, including the Form S-4. AGEX URGES INVESTORS AND STOCKHOLDERS TO READ THESE MATERIALS CAREFULLY AND IN THEIR ENTIRETY WHEN THEY
BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT AGEX, SERINA AND THE PROPOSED TRANSACTION AND RELATED MATTERS.
Investors and stockholders will be able to obtain free copies of the Form S-4 and other documents filed by AgeX with the SEC (when they
become available) through the website maintained by the SEC at www.sec.gov. In addition, investors and stockholders will be able to obtain
free copies of the Form S-4 and other documents filed by AgeX with the SEC by contacting Andrea Park by email at apark@agexinc.com. Investors
and stockholders are urged to read the Form S-4, including the proxy statement / prospectus contained therein, and the other relevant
materials when they become available before making any voting or investment decision with respect to the proposed transaction.
Participants
in the Solicitation
AgeX
and Serina, and each of their respective directors and executive officers and certain of their other members of management and employees,
may be deemed to be participants in the solicitation of proxies in connection with the proposed transaction. Information about AgeX’s
directors and executive officers is included in AgeX’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with
the SEC on March 31, 2023, in the proxy statement for AgeX’s 2022 annual meeting of stockholders, filed with the SEC on November
2, 2022, and in AgeX’s Quarterly Report on Form 10-Q for the three and six months ended June 30, 2023, filed with the SEC on August
14, 2023. Additional information regarding these persons and their interests in the transaction will be included in the proxy statement
/ prospectus included in the Form S-4 relating to the transaction when it is filed with the SEC. These documents can be obtained free
of charge from the sources indicated above.
No
Offer or Solicitation
This
communication relates to a proposed business combination transaction between AgeX and Serina. This communication is for informational
purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any
vote or approval, in any jurisdiction, pursuant to the proposed business combination transaction or otherwise, nor shall there be any
sale, issuance, exchange or transfer of the securities referred to in this communication in any jurisdiction in contravention of applicable
law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Item
9.01 - Financial Statements and Exhibits.
| Exhibit
Number |
|
Description |
| 2.1 |
|
Agreement and Plan of Merger and Reorganization, dated August 29, 2023, by and among AgeX Therapeutics, Inc., Canaria Transaction Corporation and Serina Therapeutics, Inc.† |
| 10.1 |
|
Form of AgeX Therapeutics, Inc. Stockholder Support Agreement. |
| 10.2 |
|
Form of Serina Therapeutics, Inc. Stockholder Support Agreement. |
| 10.3 |
|
Form of AgeX Therapeutics, Inc. Lock-Up Agreement. |
| 10.4 |
|
Form of Serina Therapeutics, Inc. Lock-Up Agreement. |
| 10.5 |
|
Letter Agreement, dated August 29, 2023, by and among AgeX Therapeutics, Inc., Serina Therapeutics, Inc. and Juvenescence Limited. |
| 99.1 |
|
Joint Press Release of AgeX Therapeutics, Inc. and Serina Therapeutics, Inc. |
| 104 |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document) |
†Schedules
and exhibits to this Exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule or exhibit
will be furnished to the Securities and Exchange Commission or its staff upon request.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
| |
AGEX
THERAPEUTICS, INC. |
| |
|
|
| Date:
August 30, 2023 |
By: |
/s/
Andrea E. Park |
| |
|
Chief
Financial Officer |
Exhibit
2.1
AGREEMENT
AND PLAN OF MERGER
AND
REORGANIZATION
among:
AgeX
Therapeutics, Inc.,
a
Delaware corporation;
CANARIA
TRANSACTION CORPORATION,
an
Alabama corporation; and
Serina
THERAPEUTICS, INC.,
an
Alabama corporation
Dated
as of August 29, 2023
TABLE
OF CONTENTS
| |
|
Page |
| |
|
|
| SECTION
1. |
DESCRIPTION
OF TRANSACTION |
2 |
| |
|
|
| 1.1 |
The
Merger |
2 |
| 1.2 |
Effects
of the Merger |
2 |
| 1.3 |
Closing;
Effective Time |
2 |
| 1.4 |
Certificate
of Incorporation and Bylaws; Directors and Officers |
3 |
| 1.5 |
Conversion
of Shares |
4 |
| 1.6 |
Closing
of the Company’s Transfer Books |
5 |
| 1.7 |
Delivery
of Merger Consideration |
6 |
| 1.8 |
Appraisal
Shares |
7 |
| 1.9 |
Further
Action |
8 |
| 1.10 |
Withholding |
8 |
| |
|
|
| SECTION
2. |
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY |
8 |
| |
|
|
| 2.1 |
Due
Organization; Subsidiaries |
8 |
| 2.2 |
Organizational
Documents |
9 |
| 2.3 |
Authority;
Binding Nature of Agreement |
9 |
| 2.4 |
Vote
Required |
10 |
| 2.5 |
Non-Contravention;
Consents |
10 |
| 2.6 |
Capitalization |
11 |
| 2.7 |
Financial
Statements |
13 |
| 2.8 |
Absence
of Changes |
14 |
| 2.9 |
Absence
of Undisclosed Liabilities |
15 |
| 2.10 |
Title
to Assets |
15 |
| 2.11 |
Real
Property; Leasehold |
15 |
| 2.12 |
Intellectual
Property |
16 |
| 2.13 |
Agreements,
Contracts and Commitments |
18 |
| 2.14 |
Compliance;
Permits; Restrictions |
20 |
| 2.15 |
Legal
Proceedings; Orders |
22 |
| 2.16 |
Tax
Matters |
22 |
| 2.17 |
Employee
and Labor Matters; Benefit Plans |
25 |
| 2.18 |
Environmental
Matters |
28 |
| 2.19 |
Insurance |
29 |
| 2.20 |
No
Financial Advisors |
29 |
| 2.21 |
Disclosure |
29 |
| 2.22 |
Transactions
with Affiliates |
30 |
| 2.23 |
Anti-Bribery |
30 |
| 2.24 |
Disclaimer
of Other Representations or Warranties |
31 |
| |
|
|
| SECTION
3. |
REPRESENTATIONS
AND WARRANTIES OF PARENT AND MERGER SUB |
31 |
| |
|
|
| 3.1 |
Due
Organization; Subsidiaries |
31 |
| 3.2 |
Organizational
Documents |
32 |
| 3.3 |
Authority;
Binding Nature of Agreement |
32 |
| 3.4 |
Vote
Required |
33 |
| 3.5 |
Non-Contravention;
Consents |
33 |
| 3.6 |
Capitalization |
34 |
TABLE OF CONTENTS
(continued)
| |
|
Page |
| 3.7 |
SEC
Filings; Financial Statements |
36 |
| 3.8 |
Absence
of Changes |
38 |
| 3.9 |
Absence
of Undisclosed Liabilities |
38 |
| 3.10 |
Title
to Assets |
38 |
| 3.11 |
Real
Property; Leasehold |
39 |
| 3.12 |
Intellectual
Property |
39 |
| 3.13 |
Agreements,
Contracts and Commitments |
42 |
| 3.14 |
Compliance;
Permits; Restrictions |
44 |
| 3.15 |
Legal
Proceedings; Orders |
45 |
| 3.16 |
Tax
Matters |
45 |
| 3.17 |
Employee
and Labor Matters; Benefit Plans |
48 |
| 3.18 |
Environmental
Matters |
51 |
| 3.19 |
Transactions
with Affiliates |
52 |
| 3.20 |
Insurance |
52 |
| 3.21 |
No
Financial Advisors |
52 |
| 3.22 |
Disclosure |
52 |
| 3.23 |
Anti-Bribery |
53 |
| 3.24 |
Valid
Issuance |
53 |
| 3.25 |
Disclaimer
of Other Representations or Warranties |
53 |
| |
|
|
| SECTION
4. |
CERTAIN
COVENANTS OF THE PARTIES |
53 |
| |
|
|
| 4.1 |
Operation
of Parent’s Business |
53 |
| 4.2 |
Operation
of the Company’s Business |
56 |
| 4.3 |
Access
and Investigation |
59 |
| 4.4 |
Parent
Non-Solicitation |
60 |
| 4.5 |
Company
Non-Solicitation |
61 |
| 4.6 |
Notification
of Certain Matters |
61 |
| 4.7 |
Potentially
Transferable Assets |
62 |
| 4.8 |
Parent
Legacy Note |
62 |
| 4.9 |
Post-Merger
Warrant |
63 |
| 4.10 |
Sarbanes-Oxley
Certification. |
63 |
| 4.11 |
Parent
Preferred Stock. |
63 |
| 4.12 |
Company
Notes |
63 |
| 4.13 |
Company
Incentive Plan and Parent Incentive Plan. |
63 |
| |
|
|
| SECTION
5. |
ADDITIONAL
AGREEMENTS OF THE PARTIES |
64 |
| |
|
|
| 5.1 |
Registration
Statement; Proxy Statement |
64 |
| 5.2 |
Company
Information Statement; Stockholder Written Consent |
65 |
| 5.3 |
Parent
Stockholders’ Meeting |
67 |
| 5.4 |
Regulatory
Approvals |
71 |
| 5.5 |
Options
and Warrants. |
71 |
| 5.6 |
Indemnification
of Officers and Directors |
73 |
| 5.7 |
Additional
Agreements |
75 |
| 5.8 |
Public
Announcement |
75 |
| 5.9 |
Listing |
76 |
TABLE OF CONTENTS
(continued)
| |
|
Page |
| 5.10 |
Tax
Matters |
76 |
| 5.11 |
Directors
and Officers |
77 |
| 5.12 |
Termination
of Certain Agreements and Rights |
77 |
| 5.13 |
Section
16 Matters |
77 |
| 5.14 |
Cooperation |
78 |
| 5.15 |
Allocation
Certificates |
78 |
| 5.16 |
Company
Financial Statements |
78 |
| 5.17 |
Takeover
Statutes |
79 |
| 5.18 |
Stockholder
Litigation |
79 |
| 5.19 |
Parent
Benefit Plans |
79 |
| 5.20 |
Company
280G Actions. |
80 |
| |
|
|
| SECTION
6. |
CONDITIONS
PRECEDENT TO OBLIGATIONS OF EACH PARTY |
80 |
| |
|
|
| 6.1 |
No
Restraints |
80 |
| 6.2 |
Stockholder
Approval |
80 |
| 6.3 |
Listing |
80 |
| 6.4 |
Effectiveness
of Registration Statement |
81 |
| 6.5 |
Side
Letter |
81 |
| 6.6 |
NYSE
Reverse Split. |
81 |
| |
|
|
| SECTION
7. |
ADDITIONAL
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB |
81 |
| |
|
|
| 7.1 |
Accuracy
of Representations |
81 |
| 7.2 |
Performance
of Covenants |
81 |
| 7.3 |
Documents |
82 |
| 7.4 |
No
Company Material Adverse Effect |
82 |
| 7.5 |
Termination
of Investor Agreements |
82 |
| 7.6 |
Company
Lock-Up Agreements |
82 |
| 7.7 |
Company
Stockholder Written Consent |
82 |
| 7.8 |
Appraisal
Shares |
82 |
| 7.9 |
FIRPTA
Certificate |
82 |
| 7.10 |
Company
Notes. |
82 |
| |
|
|
| SECTION
8. |
ADDITIONAL
CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY |
83 |
| |
|
|
| 8.1 |
Accuracy
of Representations |
83 |
| 8.2 |
Performance
of Covenants |
83 |
| 8.3 |
Documents |
83 |
| 8.4 |
No
Parent Material Adverse Effect |
83 |
| 8.5 |
Termination
of Contracts |
84 |
| 8.6 |
Parent
Lock-Up Agreements |
84 |
| 8.7 |
Actual
Closing Price and Post-Merger Warrants. |
84 |
| 8.8 |
Cash
at Closing. |
84 |
| |
|
|
| SECTION
9. |
TERMINATION |
84 |
| |
|
|
| 9.1 |
Termination |
84 |
TABLE OF CONTENTS
(continued)
| |
|
Page |
| 9.2 |
Effect
of Termination |
87 |
| 9.3 |
Expenses;
Termination Fees |
87 |
| |
|
|
| SECTION
10. |
MISCELLANEOUS
PROVISIONS |
90 |
| |
|
|
| 10.1 |
Non-Survival
of Representations and Warranties |
90 |
| 10.2 |
Amendment |
90 |
| 10.3 |
Waiver |
91 |
| 10.4 |
Entire
Agreement; Counterparts; Exchanges by Electronic Transmission |
91 |
| 10.5 |
Applicable
Law; Jurisdiction |
91 |
| 10.6 |
Attorneys’
Fees |
92 |
| 10.7 |
Assignability |
92 |
| 10.8 |
Notices |
92 |
| 10.9 |
Cooperation |
93 |
| 10.10 |
Severability |
93 |
| 10.11 |
Other
Remedies; Specific Performance |
93 |
| 10.12 |
No
Third Party Beneficiaries |
94 |
| 10.13 |
Construction |
94 |
Exhibits:
| |
Exhibit
A |
Certain
Definitions |
| |
Exhibit
B-1 |
Form
of Company Stockholder Support Agreement |
| |
Exhibit
B-2 |
Form
of Parent Stockholder Support Agreement |
| |
Exhibit
C-1 |
Form
of Company Lock-Up Agreement |
| |
Exhibit
C-2 |
Form
of Parent Lock-Up Agreement |
| |
Exhibit
D |
Form
of Company Stockholder Written Consent |
| |
Exhibit
E |
Surviving
Corporation Amended and Restated Certificate of Incorporation |
| |
Exhibit
F |
Parent
Amended and Restated Certificate of Incorporation |
| |
Exhibit
G |
Surviving
Corporation Amended and Restated Bylaws |
| |
Exhibit
H |
Parent
Amended and Restated Bylaws |
| |
Exhibit
I |
Amended
and Restated Company Incentive Plan |
| |
Exhibit
J |
Amended
and Restated Parent Incentive Plan |
| |
Exhibit
K |
New
Incentive Plan |
| |
Exhibit
L |
Post-Closing
Officers and Directors |
| |
Exhibit
M |
Side
Letter |
Schedules:
Company
Disclosure Schedule
Parent
Disclosure Schedule
AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
THIS
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Agreement”) is made and entered into as of August 29,
2023, by and among AgeX Therapeutics, Inc., a Delaware corporation (“Parent”),
CANARIA TRANSACTION CORPORATION, an Alabama corporation and wholly owned subsidiary of Parent (“Merger Sub”),
and Serina Therapeutics, Inc., an Alabama corporation (the “Company”).
Certain capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
A.
Parent and the Company intend to effect a merger of Merger Sub with and into the Company (the “Merger”) in accordance
with this Agreement and the ABCL. Upon consummation of the Merger, Merger Sub will cease to exist and the Company will become a wholly
owned subsidiary of Parent.
B.
The Parties intend that the Merger qualify as a “reorganization” within the meaning of Section 368(a) of the Code, and by
executing this Agreement, the Parties hereby adopt a “plan of reorganization” within the meaning of Treasury Regulations
Sections 1.368-2(g) and 1.368-3(a).
C.
The Parent Board has (i) determined that the Contemplated Transactions are fair to, advisable and in the best interests of Parent and
its stockholders, (ii) authorized, approved and declared advisable this Agreement and the Contemplated Transactions, including the issuance
of shares of Parent Common Stock to the stockholders of the Company pursuant to the terms of this Agreement, the change of control of
Parent and other actions contemplated by this Agreement, and (iii) determined to recommend, upon the terms and subject to the conditions
set forth in this Agreement, that the stockholders of Parent vote to approve the Parent Stockholder Matters and such other actions as
contemplated by this Agreement.
D.
The Merger Sub Board has (i) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of Merger
Sub and its sole stockholder, (ii) authorized, approved and declared advisable this Agreement and the Contemplated Transactions and (iii)
determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the sole stockholder of Merger
Sub votes to adopt this Agreement and thereby approve the Contemplated Transactions.
E.
The Company Board has (i) determined that the Contemplated Transactions are fair to, advisable and in the best interests of the Company
and its stockholders, (ii) authorized, approved and declared advisable this Agreement and the Contemplated Transactions and (iii) determined
to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the stockholders of the Company vote to
approve the Company Stockholder Matters and such other actions as contemplated by this Agreement.
F.
Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Parent’s willingness to enter
into this Agreement, (a) the officers, directors and stockholders of the Company listed in Section A-1 of the Company Disclosure
Schedule (the “Company Signatories”) (solely in their capacity as stockholders of the Company), are executing support
agreements in favor of Parent in substantially the form attached hereto as Exhibit B-1 (the “Company Stockholder
Support Agreement”) and (b) the officers, directors and stockholders of the Company listed in Section A-2 of the Company
Disclosure Schedule (the “Company Lock-Up Signatories”) (solely in their capacity as stockholders of the Company)
are executing lock-up agreements in substantially the form attached hereto as Exhibit C-1 (the “Company Lock-Up
Agreement”).
G.
Concurrently with the execution and delivery of this Agreement and as a condition and inducement to the Company’s willingness to
enter into this Agreement, (a) the officers, directors and stockholders of Parent listed in Section A-1 of the Parent Disclosure
Schedule (solely in their capacity as stockholders of Parent) are executing support agreements in favor of the Company in substantially
the form attached hereto as Exhibit B-2 (the “Parent Stockholder Support Agreement”) and (b) the officers,
directors and stockholders of Parent listed in Section A-2 of the Parent Disclosure Schedule (solely in their capacity as stockholders
of Parent) are executing lock-up agreements in substantially the form attached hereto as Exhibit C-2 (the “Parent
Lock-Up Agreement”).
H.
It is expected that, within three (3) Business Days after the Registration Statement is declared effective under the Securities Act,
the holders of shares of Company Capital Stock sufficient to approve the Company Stockholder Matters as required under the ABCL and the
Company’s certificate of incorporation and the Company’s bylaws (hereinafter collectively referred to as the “Company’s
Organizational Documents”) will execute and deliver an action by written consent in substantially the form attached hereto
as Exhibit D (each, a “Company Stockholder Written Consent” and collectively, the “Company
Stockholder Written Consents”).
AGREEMENT
The
Parties, intending to be legally bound, agree as follows:
SECTION
1. DESCRIPTION OF TRANSACTION
1.1
The Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Merger Sub shall
be merged with and into the Company, and the separate existence of Merger Sub shall cease. The Company will continue as the surviving
corporation in the Merger (the “Surviving Corporation”).
1.2
Effects of the Merger. The Merger shall have the effects set forth in this Agreement, the Statement of Merger and in the applicable
provisions of the ABCL. As a result of the Merger, the Company will become a wholly owned subsidiary of Parent.
1.3
Closing; Effective Time. Unless this Agreement is earlier terminated pursuant to the provisions of Section 9.1, and
subject to the satisfaction or waiver of the conditions set forth in Sections 6, 7 and 8, the consummation of the
Merger (the “Closing”) shall take place remotely as promptly as practicable (but in no event later than the second
(2nd) Business Day following the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections
6, 7 and 8, other than those conditions that by their nature are to be satisfied at the Closing, but subject to the
satisfaction or waiver of each of such conditions), or at such other time, date and place as Parent and the Company may mutually agree
in writing. The date on which the Closing actually takes place is referred to as the “Closing Date.” At the Closing,
the Parties shall cause the Merger to be consummated by executing and filing with the Secretary of State of the State of Alabama a Statement
of Merger with respect to the Merger, satisfying the applicable requirements of the ABCL and in a form reasonably acceptable to Parent
and the Company (the “Statement of Merger”). The Merger shall become effective at the time of the filing of such Statement
of Merger with the Secretary of State of the State of Alabama or at such later time as may be specified in such Statement of Merger with
the consent of Parent and the Company (the time as of which the Merger becomes effective being referred to as the “Effective
Time”).
1.4
Certificate of Incorporation and Bylaws; Directors and Officers. At the Effective Time:
(a)
the certificate of incorporation of the Surviving Corporation shall be amended and restated in its entirety at or immediately prior to
the Effective Time as set forth in Exhibit E, to, among other things, change the name of the Surviving Corporation to “Serina
Operating Company, Inc.” or such other name as shall be mutually agreed upon by Parent and the Company prior to filing such
amendment and restatement, and shall be the certificate of incorporation of the Surviving Corporation until thereafter amended as provided
by the ABCL and such amended and restated certificate of incorporation;
(b)
the certificate of incorporation of Parent shall be amended and restated in its entirety, as contemplated in Section 5.3(a)(v)
(the “First Amended and Restated Certificate of Incorporation”) and as set forth in Exhibit F, at or
immediately prior to the Effective Time, until thereafter amended as provided by the DGCL and the First Amended and Restated Certificate
of Incorporation; provided, however, that at or immediately prior to the filing of the First Amended and Restated
Certificate of Incorporation, Parent shall file an amendment to its current certificate of incorporation to (i) as contemplated by Section
5.3(a)(i), effect the NYSE Reverse Split and (ii) make such other changes as shall be mutually agreed upon by Parent and the Company
prior to filing such amendment;
(c)
the bylaws of the Surviving Corporation shall be amended and restated in their entirety at or immediately prior to the Effective Time
as set forth in Exhibit G, and shall be the bylaws of the Surviving Corporation until thereafter amended as provided by
the ABCL and such amended and restated bylaws;
(d)
the bylaws of the Parent shall be amended and restated in their entirety at or immediately prior to the Effective Time as set forth in
Exhibit H, and shall be the bylaws of the Parent until thereafter amended as provided by the DGCL and such amended and
restated bylaws;
(e)
the directors and officers of Parent, each to hold office in accordance with the First Amended and Restated Certificate of Incorporation
and bylaws of Parent, shall be as set forth in Section 5.11 after giving effect to the provisions of Section 5.11, or such
other persons as shall be mutually agreed upon by Parent and the Company; and
(f)
the directors and officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and
bylaws of the Surviving Corporation, shall be the directors and officers of Parent, or such other persons as shall be mutually agreed
upon by Parent and the Company.
1.5
Conversion of Shares.
(a)
At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder
of the Company or Parent:
(i)
any shares of Company Capital Stock held as treasury stock by the Company or held or owned by Parent, Merger Sub or any Subsidiary of
Parent or the Company immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration
shall be delivered in exchange therefor; and
(ii)
subject to Section 1.5(c), each share of Company Capital Stock outstanding immediately prior to the Effective Time (excluding
shares to be canceled pursuant to Section 1.5(a)(i) and excluding Appraisal Shares), after giving effect to the Preferred Stock
Conversion, shall be automatically converted solely into the right to receive a number of shares of Parent Common Stock equal to the
Exchange Ratio (the “Merger Consideration”).
(b)
If any shares of Company Capital Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase
option or a risk of forfeiture under any applicable restricted stock purchase agreement or other similar agreement with the Company,
then the shares of Parent Common Stock issued in exchange for such shares of Company Capital Stock at the Effective Time will to the
same extent be unvested and subject to the same repurchase option or risk of forfeiture, and such shares of Parent Common Stock shall
accordingly be marked with appropriate legends. The Company shall take all actions that may be necessary to ensure that, from and after
the Effective Time, Parent is entitled to exercise any such repurchase option or other right set forth in any such restricted stock purchase
agreement or other agreement in accordance with its terms.
(c)
No fractional shares of Parent Common Stock shall be issued in connection with the Merger, and no certificates or scrip for any such
fractional shares shall be issued. Any holder of Company Capital Stock who would otherwise be entitled to receive a fraction of a share
of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall receive from Parent,
in lieu of such fractional share and upon surrender by such holder of a letter of transmittal in accordance with Section 1.7 and
any accompanying documents as required therein: (i) one share of Parent Common Stock, if the aggregate amount of fractional shares of
Parent Common Stock such holder of Company Capital Stock would otherwise be entitled to is equal to or exceeds 0.50; or (ii) no shares
of Parent Common Stock, if the aggregate amount of fractional shares of Parent Common Stock such holder of Company Capital Stock would
otherwise be entitled to is less than 0.50.
(d)
All Company Options outstanding immediately prior to the Effective Time under the Company Incentive Plan shall be treated in accordance
with Section 5.5(a).
(e)
All Company Warrants outstanding immediately prior to the Effective Time shall be treated in accordance with Section 5.5(c)
(f)
Each share of common stock, $0.0001 par value per share, of Merger Sub issued and outstanding immediately prior to the Effective Time
shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock, $0.0001 par value per
share, of the Surviving Corporation. Each stock certificate or book-entry share of Merger Sub evidencing ownership of any such shares
shall, as of the Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation.
(g)
If, between the time of calculating the Exchange Ratio and the Effective Time, the outstanding shares of Company Capital Stock or Parent
Common Stock shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock
dividend, subdivision, reclassification, recapitalization, split (including the NYSE Reverse Split to the extent such split has not been
previously taken into account in calculating the Exchange Ratio), combination or exchange of shares or other like change, the Exchange
Ratio shall, to the extent necessary, be equitably adjusted to reflect such change to the extent necessary to provide the holders of
Company Capital Stock, Parent Common Stock, Company Options and Company Warrants with the same economic effect as contemplated by this
Agreement prior to such stock dividend, subdivision, reclassification, recapitalization, split (including the NYSE Reverse Split), combination
or exchange of shares or other like change; provided, however, that nothing herein will be construed to permit the
Company or Parent to take any action with respect to Company Capital Stock or Parent Common Stock, respectively, that is prohibited or
not expressly permitted by the terms of this Agreement.
1.6
Closing of the Company’s Transfer Books. At the Effective Time: (a) all shares of Company Capital Stock outstanding immediately
prior to the Effective Time shall be treated in accordance with Section 1.5(a), and all holders of certificates or book-entry
shares representing shares of Company Capital Stock that were outstanding immediately prior to the Effective Time shall cease to have
any rights as stockholders of the Company; and (b) the stock transfer books of the Company shall be closed with respect to all shares
of Company Capital Stock outstanding immediately prior to the Effective Time. No further transfer of any such shares of Company Capital
Stock shall be made on such stock transfer books after the Effective Time. If, after the Effective Time, a valid certificate previously
representing any shares of Company Capital Stock outstanding immediately prior to the Effective Time (including any certificates representing
the Company Preferred Stock or Company Warrants that were converted or exercised in connection with the conversion of Company Preferred
Stock or exercise of Company Warrants, as applicable) (a “Company Stock Certificate”) is presented to the Exchange
Agent or to the Surviving Corporation, such Company Stock Certificate shall be canceled and shall be exchanged as provided in Sections
1.5 and 1.7.
1.7
Delivery of Merger Consideration.
(a)
On or prior to the Closing Date, Parent and the Company shall agree upon and select a reputable bank, transfer agent or trust company
to act as exchange agent in the Merger (the “Exchange Agent”). At the Effective Time, Parent shall deposit with the
Exchange Agent evidence of book-entry shares representing the Parent Common Stock issuable pursuant to Section 1.5(a). The Parent
Common Stock so deposited with the Exchange Agent, together with any dividends or distributions received by the Exchange Agent with respect
to such shares, are referred to collectively as the “Exchange Fund.”
(b)
Promptly after the Effective Time, the Parties shall cause the Exchange Agent to mail to the Persons who were record holders of shares
of Company Capital Stock that were converted into the right to receive the Merger Consideration: (i) a letter of transmittal in customary
form and containing such provisions as Parent may reasonably specify (including a provision confirming that delivery of any Company Stock
Certificates shall be effected, and risk of loss and title to such Company Stock Certificates shall pass, only upon proper delivery of
such Company Stock Certificates to the Exchange Agent); and (ii) instructions for effecting the surrender of any Company Stock Certificates,
or uncertificated shares of Company Capital Stock, in exchange for shares of Parent Common Stock. Upon surrender of a Company Stock Certificate
or other reasonable evidence of the ownership of uncertificated Company Capital Stock to the Exchange Agent for exchange, together with
a duly executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent (including
a properly completed IRS Form W-9 or the appropriate version of IRS Form W-8, as applicable): (A) the holder of such Company Capital
Stock shall be entitled to receive in exchange therefor shares representing the Merger Consideration (in a number of whole shares of
Parent Common Stock) that such holder has the right to receive pursuant to the provisions of Section 1.5(a) (B) such Company Stock
Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7(b), each Company Stock Certificate
shall be deemed, from and after the Effective Time, to represent only the right to receive shares of Parent Common Stock representing
the Merger Consideration. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and
as a condition precedent to the delivery of any shares of Parent Common Stock, require the owner of such lost, stolen or destroyed Company
Stock Certificate to provide an applicable affidavit with respect to such Company Stock Certificate and post a bond indemnifying Parent
against any claim suffered by Parent related to the lost, stolen or destroyed Company Stock Certificate as Parent may reasonably request.
In the event of a transfer of ownership of a Company Stock Certificate that is not registered in the transfer records of the Company,
payment of the Merger Consideration may be made to a Person other than the Person in whose name such Company Stock Certificate so surrendered
is registered if such Company Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person
requesting such payment shall pay any transfer or other Taxes required by reason of the transfer or establish to the satisfaction of
Parent that such Taxes have been paid or are not applicable. The Merger Consideration and any dividends or other distributions as are
payable pursuant to Section 1.7(c) shall be deemed to have been in full satisfaction of all rights pertaining to Company Capital
Stock formerly represented by such Company Stock Certificates.
(c)
No dividends or other distributions declared or made with respect to Parent Common Stock with a record date on or after the Effective
Time shall be paid to the holder of any unsurrendered Company Stock Certificate with respect to the shares of Parent Common Stock that
such holder has the right to receive in the Merger until such holder surrenders such Company Stock Certificate, together with a duly
executed letter of transmittal and such other documents as may be reasonably required by the Exchange Agent or Parent, or provides an
affidavit of loss, theft or destruction in lieu thereof in accordance with this Section 1.7 (at which time (or, if later, on the
applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws,
to receive all such dividends and distributions, without interest).
(d)
Any portion of the Exchange Fund that remains undistributed to holders of Company Capital Stock as of the date that is one (1) year after
the Closing Date shall be delivered to Parent upon demand, and any holders of Company Stock Certificates who have not theretofore surrendered
their Company Stock Certificates in accordance with this Section 1.7 shall thereafter look only to Parent for satisfaction of
their claims for Parent Common Stock and any dividends or distributions with respect to shares of Parent Common Stock.
(e)
No Party to this Agreement shall be liable to any holder of any Company Capital Stock or to any other Person with respect to any shares
of Parent Common Stock (or dividends or distributions with respect thereto) or for any cash amounts delivered to any public official
pursuant to any applicable abandoned property Law, escheat Law or similar Law.
1.8
Appraisal Shares.
(a)
Notwithstanding any provision of this Agreement to the contrary, shares of Company Capital Stock that are outstanding immediately prior
to the Effective Time and which are held by any Person who is entitled to exercise that Person’s appraisal rights and properly
perfects that Person’s appraisal rights with respect to such shares of Company Capital Stock in accordance with the ABCL (collectively,
the “Appraisal Shares”) shall not be converted into or represent the right to receive the Merger Consideration described
in Section 1.5 attributable to such Appraisal Shares. Such stockholders shall be entitled to receive payment of the “fair
value” (as defined in Section 10A-2A-13.01 et seq. of the ABCL (the “ABCL Article 13”)) of such shares of Company
Capital Stock held by them in accordance with the ABCL, unless and until such stockholders fail to perfect or waive, withdraw or lose
the right to appraisal under ABCL Article 13. All Appraisal Shares held by stockholders who have failed to perfect or who have waived,
withdrawn, or lost the right to appraisal rights under ABCL Article 13 of such shares of Company Capital Stock under the ABCL (whether
occurring before, at or after the Effective Time) shall thereupon be deemed to be converted into and to have become exchangeable for,
as of the Effective Time, the right to receive the Merger Consideration, without interest, attributable to such Appraisal Shares upon
their surrender in the manner provided in Sections 1.5 and 1.7.
(b)
The Company shall give prompt written notice to Parent of any demand received by the Company from a holder of shares of Company Common
Stock pursuant to Section 13.21 of ABCL Article 13, and Parent shall have the right to participate in all negotiations and proceedings
with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent (not to
be unreasonably withheld, delayed or conditioned), make any payment with respect to, or settle or offer to settle, any such demands,
or waive any failure by any holder of Company Common Stock to timely deliver a written demand for appraisal or the taking of any other
action by any such holder as may be necessary to perfect appraisal rights under the ABCL, or agree to do any of the foregoing.
1.9
Further Action. If, at any time after the Effective Time, any further action is determined by the Surviving Corporation to be
necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation with full right, title and possession
of and to all rights and property of the Company, then the officers and directors of the Surviving Corporation shall be fully authorized,
and shall use their and its commercially reasonable efforts (in the name of the Company, in the name of Merger Sub, in the name of the
Surviving Corporation and otherwise) to take such action.
1.10
Withholding. The Parties and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Company Capital Stock or any other Person such amounts as such Party or the Exchange Agent
reasonably determines it is required to deduct and withhold under the Code or any other Law with respect to the making of such payment.
To the extent that amounts are so deducted and withheld and paid to the appropriate Governmental Body, such deducted and withheld amounts
shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such deduction and withholding
was made. To the extent it is determined that any such deduction or withholding is required in respect of payment to a holder of Company
Capital Stock (other than by reason of failure of the Company to provide the FIRPTA Certificate in accordance with Section 7.9
or such holder to provide an IRS Form W-9 or appropriate IRS Form W-8 to the Exchange Agent or in respect of any payments in the nature
of compensation), the Parties shall use commercially reasonable efforts (including using commercially reasonable efforts to cause the
Exchange Agent) (x) to notify the Person in respect of which such deduction or withholding is being made and (y) to the extent permitted
by applicable Law, cooperate with such Person to the extent reasonably requested to establish an exemption or reduction of, or otherwise
minimize, such deduction and withholding.
SECTION
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject
to Section 10.13(h), except as set forth in the written disclosure schedule delivered by the Company to Parent (the “Company
Disclosure Schedule”), the Company represents and warrants to Parent and Merger Sub as follows:
2.1
Due Organization; Subsidiaries.
(a)
The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Alabama and has
all necessary corporate power and authority: (i) to conduct its business in the manner in which its business is currently being conducted;
(ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and
used; and (iii) to perform its obligations under all Contracts by which it is bound, except where the failure to have such power
or authority would not reasonably be expected to prevent or materially delay the ability of the Company to consummate the Contemplated
Transactions.
(b)
The Company is duly licensed and qualified to do business, and is in good standing (to the extent applicable in such jurisdiction), under
the Laws of all jurisdictions where the nature of its business requires such licensing or qualification other than in jurisdictions where
the failure to be so qualified individually or in the aggregate would not be reasonably expected to have a Company Material Adverse Effect.
(c)
The Company has no Subsidiaries, except for the Entities identified in Section 2.1(c) of the Company Disclosure Schedule;
and neither the Company nor any of the Entities identified in Section 2.1(c) of the Company Disclosure Schedule own any capital
stock of, or any equity, ownership or profit sharing interest of any nature in, or controls directly or indirectly, any other Entity
other than the Entities identified in Section 2.1(c) of the Company Disclosure Schedule. Each of the Company’s Subsidiaries
is a corporation or other legal entity duly organized, validly existing and, if applicable, in good standing under the Laws of the jurisdiction
of its organization and has all necessary corporate or other power and authority to conduct its business in the manner in which its business
is currently being conducted and to own or lease and use its property and assets in the manner in which its property and assets are currently
owned or leased and used, except where the failure to have such power or authority would not be reasonably expected to have a Company
Material Adverse Effect.
(d)
Neither the Company nor any of its Subsidiaries are or have otherwise been, directly or indirectly, a party to, member of or participant
in any partnership, joint venture or similar business entity. Neither the Company nor any of its Subsidiaries have agreed or is obligated
to make, or is bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to
any other Entity. Neither the Company nor any of its Subsidiaries have, at any time, been a general partner of, or has otherwise been
liable for any of the debts or other obligations of, any general partnership, limited partnership or other Entity.
2.2
Organizational Documents. The Company has made available to Parent accurate and complete copies of the Organizational Documents
of the Company and each of its Subsidiaries in effect as of the date of this Agreement. Neither the Company nor any of its Subsidiaries
are in breach or violation of its respective Organizational Documents in any material respect.
2.3
Authority; Binding Nature of Agreement. The Company has all necessary corporate power and authority to enter into this Agreement
and, subject, with respect to the Company, to receipt of the Required Company Stockholder Vote, to perform its obligations under this
Agreement and to consummate the Contemplated Transactions. The Company Board (at meetings duly called and held or by written consent
in lieu of a meeting) has: (a) determined that the Contemplated Transactions are fair to, advisable and in the best interests of the
Company and its stockholders; (b) authorized, approved and declared advisable this Agreement and the Contemplated Transactions;
(c) recommended, upon the terms and subject to the conditions set forth in this Agreement, that the stockholders of the Company vote
to approve the Company Stockholder Matters; and (d) approved the Company Stockholder Support Agreements and the transactions contemplated
thereby.
This
Agreement has been duly executed and delivered by the Company and assuming the due authorization, execution and delivery by Parent and
Merger Sub, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its
terms, subject to the Enforceability Exceptions.
2.4
Vote Required. The affirmative vote (or written consent) of the holders of at least (a) 60% of the then outstanding shares of
Series A Preferred Stock voting as a separate class, (b) 60% of the then outstanding shares of Series A-1 Preferred Stock voting as a
separate class, (c) 60% of the then outstanding shares of Series A-2 Preferred Stock voting as a separate class, (d) 60% of the then
outstanding shares of Series A-3 Preferred Stock voting as a separate class, (e) 60% of the then outstanding shares of Series A-4 Preferred
Stock voting as a separate class, (f) 60% of the then outstanding shares of Series A-5 Preferred Stock voting as a separate class, and
(g) a majority of the then outstanding shares of the capital stock of the Company on an as-converted to Company Common Stock basis and
as a single class (collectively, the “Required Company Stockholder Vote”), is the only vote (or written consent) of
the holders of any class or series of Company Capital Stock necessary to adopt and approve this Agreement and approve the Contemplated
Transactions.
2.5
Non-Contravention; Consents. Subject to obtaining the Required Company Stockholder Vote and the filing of the Statement of
Merger required by the ABCL, neither (a) the execution, delivery, or performance of this Agreement by the Company, nor (b) the consummation
of the Contemplated Transactions, will directly or indirectly (with or without notice or lapse of time):
(i)
contravene, conflict with or result in a violation of any of the provisions of the Organizational Documents of the Company or any of
its Subsidiaries;
(ii)
contravene, conflict with or result in a violation of, or give any Governmental Body or other Person the right to challenge the Contemplated
Transactions or to exercise any remedy or obtain any relief under, any Law or any order, writ, injunction, judgment or decree to which
the Company or any of its Subsidiaries, or any of the assets owned or used by the Company or any of its Subsidiaries, is subject, except
as would not reasonably be expected to constitute, individually or in the aggregate, a Company Material Adverse Effect;
(iii)
contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by the Company or its Subsidiaries,
except as would not reasonably be expected to constitute, individually or in the aggregate, a Company Material Adverse Effect;
(iv)
contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Company Material
Contract, or give any Person the right to: (A) declare a default or exercise any remedy under any Company Material Contract; (B)
any material payment, rebate, chargeback, penalty or change in delivery schedule under any Company Material Contract; (C) accelerate
the maturity or performance of any Company Material Contract; or (D) cancel, terminate or modify any term of any Company Material
Contract, except in the case of any non-material breach, default, penalty or modification; or
(v)
result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by the Company or any of its
Subsidiaries (except for Permitted Encumbrances).
Except
for (A) any Consent set forth in Section 2.5 of the Company Disclosure Schedule under any Company Material Contract, (B) the Required
Company Stockholder Vote, (C) the filing of the Statement of Merger with the Secretary of State of the State of Alabama pursuant to the
ABCL, and (D) such consents, waivers, approvals, orders, authorizations, registrations, declarations and filings, as may be required
under applicable federal and state securities Laws, neither the Company nor any of its Subsidiaries was, is or will be required to make
any filing with or give any notice to, or to obtain any Consent from, any Person in connection with (x) the execution, delivery or performance
of this Agreement, or (y) the consummation of the Contemplated Transactions, which if individually or in the aggregate were not given
or obtained, would reasonably be expected to prevent or materially delay the ability of the Company to consummate the Contemplated Transactions.
The Company Board has taken and will take all actions necessary to ensure that the restrictions applicable to business combinations contained
in the ABCL are, and will be, inapplicable to the execution, delivery and performance of this Agreement, the Company Stockholder Support
Agreements, the Company Lock-Up Agreements and to the consummation of the Contemplated Transactions. No other state takeover statute
or similar Law applies or purports to apply to the Merger, this Agreement, the Company Stockholder Support Agreements, the Company Lock-Up
Agreements or any of the Contemplated Transactions.
2.6
Capitalization.
(a)
The authorized Company Capital Stock as of the date of this Agreement consists of (i) 15,000,000 shares of Company Common Stock, par
value $0.01 per share, of which 2,234,100 shares are issued and outstanding as of the date of this Agreement, and (ii) 10,000,000 shares
of preferred stock, par value $0.01 per share (the “Company Preferred Stock”), 400,000 shares of which have been designated
Series A Preferred Stock (the “Series A Preferred Stock”), all of which have been issued and are outstanding as of
the date of this Agreement, 300,000 shares of which have been designated Series A-1 Preferred Stock (the “Series A-1 Preferred
Stock”), all of which have been issued and are outstanding as of the date of this Agreement, 1,122,077 shares of which have
been designated Series A-2 Preferred Stock (the “Series A-2 Preferred Stock”), 1,117,013 shares of which have been
issued and are outstanding on the date of this Agreement, 499,200 shares of which have been designated Series A-3 Preferred Stock (the
“Series A-3 Preferred Stock”), all of which have been issued and are outstanding on the date of this Agreement, 718,997
shares of which have been designated Series A-4 Preferred Stock (the “Series A-4 Preferred Stock”), all of which have
been issued and are outstanding on the date of this Agreement, 4,620,000 shares of which have been designated Series A-5 Preferred Stock
(the “Series A-5 Preferred Stock”), 484,918 shares of which have been issued and are outstanding on the date of this
Agreement, and the balance is available for designation by the Company Board. Section 2.6(a) of the Company Disclosure Schedule
lists, as of the date of this Agreement (A) each record holder of issued and outstanding Company Capital Stock and the number and type
of shares of Company Capital Stock held by such holder; (B)(1) each holder of issued and outstanding Company Warrants, (2) the number
and type of shares subject to each Company Warrant, (3) the exercise price of each Company Warrant and (4) the termination date of each
Company Warrant; and (C)(1) each holder of issued and outstanding Company Notes, (2) the number and type of shares subject to each Company
Note, (3) the conversion triggers for each Company Note and (4) the maturity date of each Company Note.
(b)
All of the outstanding shares of Company Common Stock and Company Preferred Stock have been duly authorized and validly issued, and are
fully paid and nonassessable. Except as set forth in the Investor Agreements or Section 2.6(b) of the Company Disclosure Schedule,
none of the outstanding shares of Company Capital Stock is entitled or subject to any preemptive right, right of participation, right
of maintenance or any similar right and none of the outstanding shares of Company Capital Stock is subject to any right of first refusal
in favor of the Company. Except as contemplated herein and in the Investor Agreements, there is no Company Contract relating to the voting
or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or
similar right with respect to), any shares of Company Capital Stock. The Company is not under any obligation, nor is it bound by any
Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Capital
Stock or other securities. Section 2.6(b) of the Company Disclosure Schedule accurately and completely lists all repurchase rights
held by the Company with respect to shares of Company Capital Stock (including shares issued pursuant to the exercise of stock options)
and specifies which of those repurchase rights are currently exercisable.
(c)
Except for (i) the Serina Therapeutics, Inc. 2017 Stock Option Plan, as amended (the “Company Incentive Plan”), (ii)
the Company Warrants as set forth in Section 2.6(a) of the Company Disclosure Schedule, and (iii) the Company Notes as set forth
in Section 2.6(a) of the Company Disclosure Schedule, the Company does not have any stock option plan or any other plan, program,
agreement or arrangement providing for any equity-based compensation for any Person. As of the date of this Agreement, the Company has
reserved 2,100,000 shares of Company Common Stock for issuance under the Company Incentive Plan, the Company has granted Company Options
for 2,086,450 shares of Company Common Stock, of which 1,990,150 Company Options are fully vested but have not yet been exercised, and
20,550 shares of Company Common Stock remain available for future issuance of Company Options pursuant to the Company Incentive Plan.
Section 2.6(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding
as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to the
Company Option at the time of grant; (iii) the number of shares of Company Common Stock subject to the Company Option as of the
date of this Agreement; (iv) the exercise price of the Company Option; (v) the date on which the Company Option was granted;
(vi) the applicable vesting schedule, including the number of vested and unvested Company Options as of the date of this Agreement;
(vii) the date on which the Company Option expires; and (viii) whether the Company Option is intended to constitute an “incentive
stock option” (as defined in the Code) or a non-qualified stock option. The Company has made available to Parent an accurate and
complete copy of the Company Incentive Plan and all stock option agreements evidencing outstanding options granted thereunder. Section
2.6(c) of the Company Disclosure Schedule sets forth a list of Company Options that have accelerated vesting in connection with the
closing of the Contemplated Transactions.
(d)
Except for Company Warrants as set forth in Section 2.6(a) of the Company Disclosure Schedule, Company Notes as set forth in Section
2.6(a) of the Company Disclosure Schedule, and the Company Options set forth in Section 2.6(c) of the Company Disclosure Schedule,
there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares
of the capital stock or other securities of the Company or any of its Subsidiaries; (ii) outstanding security, instrument or obligation
that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company or any
of its Subsidiaries; or (iii) condition or circumstance that could be reasonably likely to give rise to or provide a basis for the
assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other
securities of the Company or any of its Subsidiaries. There are no outstanding or authorized stock appreciation, phantom stock, profit
participation or other similar rights with respect to the Company or any of its Subsidiaries.
(e)
All outstanding shares of Company Common Stock, Company Preferred Stock, Company Options, Company Warrants, and Company Notes and other
securities of the Company have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable
Laws, and (ii) all requirements set forth in applicable Contracts.
2.7
Financial Statements.
(a)
Section 2.7(a) of the Company Disclosure Schedules includes true and complete copies of (i) the Company’s audited consolidated
balance sheets at December 31, 2022, 2021, and 2020, together with related audited consolidated statements of operations, preferred stock
and stockholders’ deficit and cash flows, and notes thereto, of the Company for the fiscal years then ended and (ii) the Company
Unaudited Interim Balance Sheet, together with the unaudited consolidated statements of operations, preferred stock and stockholders’
deficit and cash flows of the Company for the period reflected in the Company Unaudited Interim Balance Sheet (collectively, the “Company
Financials”). The Company Financials were prepared in accordance with GAAP applied on a consistent basis unless otherwise noted
therein throughout the periods covered thereby (except as may be indicated in the notes to such Company Financials and except that the
unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments, none of which
are reasonably expected to be material in amount) and fairly present, in all material respects, the financial position and operating
results of the Company and its consolidated Subsidiaries as of the dates and for the periods indicated therein.
(b)
The Company and each of its Subsidiaries maintains accurate books and records reflecting their assets and liabilities and maintains a
system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of the
financial statements in conformity with GAAP and to maintain accountability of the Company’s and its Subsidiaries’ assets;
(iii) access to the Company’s and its Subsidiaries’ assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for the Company’s and its Subsidiaries’ assets is compared
with the existing assets at regular intervals and appropriate action is taken with respect to any differences; and (v) accounts,
notes and other payables are recorded accurately, and proper and adequate procedures are implemented to effect the collection or payment
thereof on a current and timely basis. The Company and each of its Subsidiaries maintain internal control over financial reporting that
provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with GAAP.
(c)
Section 2.7(c) of the Company Disclosure Schedule lists, and the Company has delivered to Parent accurate and complete copies
of the documentation creating or governing, all securitization transactions and “off-balance sheet arrangements” (as described
in Instruction 8 to Item 303(b) of Regulation S-K as promulgated under the Securities Act) effected by the Company or any of its Subsidiaries
since January 1, 2020.
(d)
Since January 1, 2020, there have been no formal internal investigations regarding financial reporting or accounting policies and practices
discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer or general counsel
of the Company, the Company Board or any committee thereof. Except as set forth in Section 2.7(d) of the Company Disclosure Schedule,
since January 1, 2020, neither the Company nor its independent auditors have identified (i) any significant deficiency or material weakness
in the design or operation of the system of internal accounting controls utilized by the Company and its Subsidiaries, (ii) any fraud,
whether or not material, that involves the Company, any of its Subsidiaries, the Company’s management or other employees who have
a role in the preparation of financial statements or the internal accounting controls utilized by the Company and its Subsidiaries or
(iii) any claim or allegation regarding any of the foregoing.
2.8
Absence of Changes. Except as set forth in Section 2.8 of the Company Disclosure Schedule and except for reasonable and good faith
actions or omissions taken to comply with applicable Law or guidance by a Governmental Body in connection with the COVID-19 pandemic,
between the date of the Company Unaudited Interim Balance Sheet and the date of this Agreement, the Company has conducted its business
only in the Ordinary Course of Business (except for the execution and performance of this Agreement and the discussions, negotiations
and transactions related thereto, including the Contemplated Transactions) and there has not been any (a) Company Material Adverse Effect
or (b) action, event or occurrence that would have required the consent of Parent pursuant to Section 4.2(b) of this Agreement
had such action, event or occurrence taken place after the execution and delivery of this Agreement.
2.9
Absence of Undisclosed Liabilities. As of the date of this Agreement, neither the Company nor any of its Subsidiaries have any
liability, indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of any kind, whether accrued, absolute, contingent,
matured, unmatured or otherwise (whether or not required to be reflected in the financial statements in accordance with GAAP) (each a
“Liability”), individually or in the aggregate, of a type required to be recorded or reflected on a balance sheet
or disclosed in the footnotes thereto under GAAP except for: (a) Liabilities disclosed, reflected or reserved against in the Company
Unaudited Interim Balance Sheet; (b) normal and recurring current Liabilities that have been incurred by the Company or its Subsidiaries
since the date of the Company Unaudited Interim Balance Sheet in the Ordinary Course of Business and which are not in excess of $100,000
in the aggregate; (c) Liabilities for performance of obligations of the Company or any of its Subsidiaries under Company Material
Contracts which have not resulted from a breach of such Company Material Contracts, breach of warranty, tort, infringement or violation
of Law; (d) Liabilities incurred in connection with the Contemplated Transactions; and (e) Liabilities described in Section
2.9 of the Company Disclosure Schedule.
2.10
Title to Assets. The Company and each of its Subsidiaries owns, and have good and valid title to, or, in the case of leased properties
and assets, valid leasehold interests in, all tangible properties or tangible assets and equipment used or held for use in its business
or operations or purported to be owned by it, including: (a) all tangible assets reflected on the Company Unaudited Interim Balance Sheet;
and (b) all other tangible assets reflected in the books and records of the Company or any of its Subsidiaries as being owned by the
Company or such Subsidiary. All of such assets are owned or, in the case of leased assets, leased by the Company or its applicable Subsidiary
free and clear of any Encumbrances, other than Permitted Encumbrances.
2.11
Real Property; Leasehold. Neither the Company nor any of its Subsidiaries owns or has ever owned any real property. The Company
has made available to Parent an accurate and complete list of all real properties with respect to which the Company directly or indirectly
holds a valid leasehold interest as well as any other real estate that is in the possession of or leased by the Company or any of its
Subsidiaries, and the Company has made available to Parent copies of all leases under which any such real property is possessed (the
“Company Real Estate Leases”), each of which is in full force and effect, with no existing material default thereunder.
The Company’s or its applicable Subsidiary’s use and operation of each such leased property conforms to all applicable Laws
in all material respects, and the Company or its applicable Subsidiary has exclusive possession of each such leased property and has
not granted any occupancy rights to tenants or licensees with respect to such leased property. In addition, each such leased property
is free and clear of all Encumbrances other than Permitted Encumbrances.
2.12
Intellectual Property.
(a)
Section 2.12(a) of the Company Disclosure Schedule accurately identifies (i) the name of the applicant/registrant, (ii) the jurisdiction
of application/registration, (iii) the application or registration number and (iv) any other co-owners, for each item of Registered IP
owned in whole or in part by the Company or its Subsidiaries (the “Company Owned Registered IP”). Each of the patents
and patent applications included in the Company Owned Registered IP properly identifies by name each and every inventor of the inventions
claimed therein as determined in accordance with applicable Laws of the United States. To the Company’s Knowledge, (A) the Company
Owned Registered IP is valid, enforceable and subsisting, (B) none of the Company Owned Registered IP has been misused, withdrawn, canceled
or abandoned, and (C) all application, registration, issuance, renewal and maintenance fees for the Company Owned Registered IP having
a final due date on or before the date of this Agreement have been timely paid in full. To the Company’s Knowledge, with respect
to each item of Company Owned Registered IP and each patent application from which such Company Owned Registered IP claims priority,
all statements made and information presented to the applicable patent office by or on behalf of the Company or its Subsidiaries or any
inventor thereof, or their respective patent counsel, during the prosecution thereof are accurate and complete and comply with 37 CFR
1.56. As of the date of this Agreement, no interference, opposition, reissue, reexamination or other proceeding of any nature (other
than initial examination proceedings) is pending or, to the Company’s Knowledge, threatened in writing, in which the scope, validity,
enforceability or ownership of any Company Owned Registered IP is being or has been contested or challenged.
(b)
The Company or its Subsidiaries solely owns all right, title and interest in and to all Company IP (other than as disclosed in Section
2.12(a) of the Company Disclosure Schedule and except for any failure to own or have such right to use, or have the right to bring
actions that would not reasonably be expected to have a Company Material Adverse Effect), free and clear of all Encumbrances other than
Permitted Encumbrances and, to the Company’s Knowledge, has the right, pursuant to a Company In-bound License to use all other
material Intellectual Property Rights used by the Company or its Subsidiaries in their respective businesses as currently conducted or
as proposed to be conducted as of the date of this Agreement. The Company IP and the Intellectual Property Rights licensed to the Company
or its Subsidiaries pursuant to a Company In-bound License (the “Company In-Licensed IP”) are all the Intellectual
Property Rights necessary to operate the business of the Company and its Subsidiaries as currently conducted and to the Company’s
Knowledge, as proposed to be conducted, as of the date of this Agreement. No Company Associate owns or has any claim, right (whether
or not currently exercisable) or interest to or in any Company IP, and each Company Associate involved in the creation or development
of any material Company IP, pursuant to such Company Associate’s activities on behalf of the Company or its Subsidiaries, has signed
a valid, enforceable written agreement containing a present assignment of all of such Company Associate’s rights in such Company
IP to the Company or its Subsidiaries (without further payment being owed to any such Company Associate and without any restrictions
or obligations on the Company’s or its Subsidiaries’ ownership or use thereof) and confidentiality provisions protecting
the Company IP, which, to the Company’s Knowledge, has not been breached by such Company Associate. Without limiting the foregoing,
the Company and its Subsidiaries have taken commercially reasonable steps to protect, maintain and enforce all Company IP, and as required,
Company In-Licensed IP, including the secrecy, confidentiality and value of trade secrets and other confidential information therein
(as applicable), and to the Company’s Knowledge there have been no unauthorized disclosures by Company or its Subsidiaries of any
confidential information or trade secrets associated with Company IP or Company In-Licensed IP. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will conflict with, alter or impair any of the Company’s
or its Subsidiaries’ or, following the Closing, Parent’s, rights in or to any Company IP or Company In-Licensed IP or cause
any payments of any kind to be due or payable to any Person.
(c)
Other than the Company IP identified as co-owned in Section 2.12(a) of the Company Disclosure Schedule, to the Company’s Knowledge,
no funding, facilities or personnel of any Governmental Body or any university, college, research institute or other educational or academic
institution has been used, in whole or in part, to create any Company IP or any Company In-Licensed IP, except for any such funding or
use of facilities or personnel that does not result in such Governmental Body or institution obtaining ownership or other rights (including
any “march in” rights or a right to direct the location of manufacturing of products) to such Company IP or the right to
receive royalties or other consideration for the practice of such Company IP.
(d)
Section 2.12(d) of the Company Disclosure Schedule sets forth each license agreement pursuant to which the Company or any of its
Subsidiaries (i) is granted a license under any Intellectual Property Right owned by any third party that is used by the Company or its
Subsidiaries in its business as currently conducted or, to the Company’s Knowledge, as proposed to be conducted as of the date
of this Agreement (each a “Company In-bound License”) or (ii) grants to any third party a license, option, covenant
not to sue or other right under any Company IP or any Company In-Licensed IP (each a “Company Out-bound License”)
(provided, that Company In-bound Licenses shall not include material transfer agreements, clinical trial agreements, services
agreements, non-disclosure agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses or generally
available patent license agreements, in each case entered into in the Ordinary Course of Business on a non-exclusive basis and that do
not grant any commercial rights to any products or services of the Company or its Subsidiaries; and Company Out-bound Licenses shall
not include material transfer agreements, clinical trial agreements, services agreements, non-disclosure agreements, or non-exclusive
outbound licenses, in each case entered into in the Ordinary Course of Business on a non-exclusive basis and that do not grant any commercial
rights to any products or services of the Company or its Subsidiaries). Neither the Company nor its Subsidiaries nor, to the Company’s
Knowledge, any other party to any Company In-bound License or Company Out-bound License has breached or is in breach of any of its obligations
under any Company In-bound License or Company Out-bound License.
(e)
To the Company’s Knowledge: (i) the operation of the businesses of the Company and its Subsidiaries as currently conducted or as
proposed to be conducted as of the date of this Agreement does not infringe or misappropriate or otherwise violate any Intellectual Property
Right owned by any other Person; and (ii) no other Person is infringing, misappropriating or otherwise violating any Company IP
or any Intellectual Property rights exclusively licensed to the Company or its Subsidiaries. As of the date of this Agreement, no Legal
Proceeding is pending (or, to the Company’s Knowledge, is threatened in writing) (A) against the Company or its Subsidiaries alleging
that the operation of the businesses of the Company or its Subsidiaries infringes or constitutes the misappropriation or other violation
of any Intellectual Property Rights of another Person or (B) by the Company or its Subsidiaries alleging that another Person has infringed,
misappropriated or otherwise violated any of the Company IP or any Company In-Licensed IP. Since January 1, 2020, neither the Company
nor any of its Subsidiaries have received any written notice or other written communication alleging that the operation of the business
of the Company or its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Right
of another Person.
(f)
None of the Company IP or, to the Company’s Knowledge, any Company In-Licensed IP (i) is subject to any pending or outstanding
injunction, directive, order, decree, settlement, judgment or other disposition of dispute that adversely and materially restricts the
use, transfer, registration or licensing by the Company or its Subsidiaries or (ii) would reasonably be expected to adversely affect
the validity, scope, use, registrability, or enforceability thereof.
(g)
To the Company’s Knowledge, the Company, its Subsidiaries and the operation of the Company’s and its Subsidiaries’
business are in substantial compliance with all applicable Laws pertaining to data privacy and data security of any personally identifiable
information and sensitive business information (collectively, “Sensitive Data”) except to the extent that such noncompliance
has not and would not reasonably be expected to have a Company Material Adverse Effect. To the Company’s Knowledge, since January
1, 2020, there have been (i) no material losses or thefts of data or security breaches relating to Sensitive Data used in the business
of the Company or its Subsidiaries, (ii) no violations of any security policy of the Company or its Subsidiaries regarding any such Sensitive
Data, (iii) no unauthorized access or unauthorized use of any Sensitive Data used in the business of the Company or its Subsidiaries
and (iv) no unintended or improper disclosure of any personally identifiable information in the possession, custody or control of the
Company or its Subsidiaries, or a contractor or agent acting on behalf of the Company or its Subsidiaries, in each case of (i) through
(iv), except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(h)
None of the Company or its Subsidiaries are now nor has ever been a member or promoter of, or a contributor to, any industry standards
body or any similar organization that would reasonably be expected to require or obligate any of the Company or its Subsidiaries to grant
or offer to any other Person any license or right to any Company IP or Company In-Licensed IP.
2.13
Agreements, Contracts and Commitments.
(a)
Section 2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement
(other than any Company Benefit Plans) (each, a “Company Material Contract” and collectively, the “Company
Material Contracts”):
(i)
each Company Contract that would be a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities
Act (assuming the Company was subject to the public reporting requirements of the Exchange Act);
(ii)
each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii)
each Company Contract containing (A) any covenant limiting the freedom of the Company, its Subsidiaries or the Surviving Corporation
to engage in any line of business or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing
or distribution rights related to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase a minimum quantity
of goods or services, or (E) any material non-solicitation provisions applicable to the Company or any of its Subsidiaries;
(iv)
each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $50,000 pursuant
to its express terms and not cancelable without penalty;
(v)
each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi)
each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements
or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with
respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company
or any of its Subsidiaries;
(vii)
each Company Contract requiring payment by or to the Company or any of its Subsidiaries after the date of this Agreement in excess of
$300,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions);
(B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of
the Company or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration,
development or other agreement currently in force under which the Company or any of its Subsidiaries have continuing obligations to develop
or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries have continuing
obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by the Company or any of its Subsidiaries;
or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any of
its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries,
in each case, except for Contracts entered into in the Ordinary Course of Business;
(viii)
each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing
advisory services to the Company in connection with the Contemplated Transactions;
(ix)
each Company Real Estate Lease;
(x)
each Company Contract with any Governmental Body;
(xi)
each Company Out-bound License and Company In-bound License;
(xii)
each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any
of its Subsidiaries; or
(xiii)
any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable,
and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement,
contract or commitment of more than $300,000 in the aggregate, or (B) that is material to the business or operations of the Company and
its Subsidiaries, taken as a whole.
(b)
The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments
thereto. Except as set forth in Section 2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that
are not in written form. As of the date of this Agreement, none of the Company, any of its Subsidiaries, nor, to the Company’s
Knowledge, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached,
violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any Company Material Contract in such manner as
would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages
or pursue other legal remedies which would reasonably be expected to be material to the Company or its business or operations. As to
the Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and
in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms
of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company
Material Contract or any other material term or provision of any Company Material Contract.
2.14
Compliance; Permits; Restrictions.
(a)
The Company and each of its Subsidiaries are, and since January 1, 2020, have been, in compliance in all material respects with all applicable
Laws, including the Federal Food, Drug, and Cosmetic Act (“FDCA”), the U.S. Food and Drug Administration (“FDA”)
regulations adopted thereunder, the Public Health Service Act and any other similar Law administered or promulgated by the FDA or other
comparable Governmental Body responsible for the regulation of the development, clinical testing, manufacturing, sale, marketing, distribution
and importation or exportation of drug and biopharmaceutical products (each, a “Drug Regulatory Agency”), except for
any noncompliance, either individually or in the aggregate, which would not be material to the Company. No investigation, claim, suit,
proceeding, audit or other action by any Governmental Body is pending or, to the Company’s Knowledge, threatened against the Company
or any of its Subsidiaries. There is no agreement, judgment, injunction, order or decree by or with a Drug Regulatory Agency binding
upon the Company or any of its Subsidiaries which (i) has or would reasonably be expected to have the effect of prohibiting or materially
impairing any business practice of the Company or any of its Subsidiaries, any acquisition of material property by the Company or any
of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently conducted, (ii) is reasonably likely
to have an adverse effect on the Company’s ability to comply with or perform any covenant or obligation under this Agreement, or
(iii) is reasonably likely to have the effect of preventing, delaying, making illegal or otherwise interfering with the Contemplated
Transactions.
(b)
The Company and its Subsidiaries hold all required Governmental Authorizations which are material to the operation of the business of
the Company and its Subsidiaries as currently conducted (the “Company Permits”). Section 2.14(b) of the Company
Disclosure Schedule identifies each Company Permit. The Company and its Subsidiaries hold all right, title and interest in and to all
Company Permits free and clear of any Encumbrance. The Company and each of its Subsidiaries are in material compliance with the terms
of the Company Permits. No Legal Proceeding is pending or, to the Company’s Knowledge, threatened, which seeks to revoke, limit,
suspend, or materially modify any Company Permit. The rights and benefits of each Company Permit will be available to the Surviving Corporation
or its Subsidiaries, as applicable, immediately after the Effective Time on terms substantially identical to those enjoyed by the Company
and its Subsidiaries as of the date of this Agreement and immediately prior to the Effective Time.
(c)
There are no proceedings pending or, to the Company’s Knowledge, threatened with respect to an alleged material violation by the
Company or any of its Subsidiaries of the FDCA, FDA regulations adopted thereunder, the Controlled Substances Act, the Public Health
Service Act or any other similar Law administered or promulgated by any Drug Regulatory Agency.
(d)
The Company is not currently conducting or addressing, and to the Company’s Knowledge there is no basis to expect that it will
be required to conduct or address, any corrective actions, including, without limitation, product recalls or clinical holds.
(e)
All clinical, pre-clinical and other studies and tests conducted by or, to the Company’s Knowledge, on behalf of, or sponsored
by, the Company or any of its Subsidiaries, or in which the Company or any of its Subsidiaries or their respective current products or
product candidates have participated, were and, if still pending, are being conducted in all material respects in accordance with standard
medical and scientific research procedures and in compliance in all material respects with the applicable regulations of any applicable
Drug Regulatory Agency and other applicable Law, including 21 C.F.R. Parts 50, 54, 56, 58 and 312. Since January 1, 2020, neither the
Company nor any of its Subsidiaries have received any notices, correspondence, or other communications from any Drug Regulatory Agency
requiring, or, to the Company’s Knowledge, threatening to initiate, the termination or suspension of any clinical studies conducted
by or on behalf of, or sponsored by, the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries or their
respective current products or product candidates have participated.
(f)
Neither the Company nor any of its Subsidiaries are the subject of any pending or, to the Company’s Knowledge, threatened investigation
in respect of its business or products by the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal
Gratuities” Final Policy set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto. To the Company’s
Knowledge, neither the Company nor any of its Subsidiaries have committed any acts, made any statement, or failed to make any statement,
in each case in respect of its business or products that would violate the FDA’s “Fraud, Untrue Statements of Material Facts,
Bribery, and Illegal Gratuities” Final Policy, and any amendments thereto. None of the Company, any of its Subsidiaries or any
of their respective officers, employees or agents has been convicted of any crime or engaged in any conduct that could result in a debarment
or exclusion (i) under 21 U.S.C. Section 335a or (ii) any similar applicable Law. To the Company’s Knowledge, no debarment or exclusionary
claims, actions, proceedings or investigations in respect of their business or products are pending or threatened against the Company,
any of its Subsidiaries or any of their respective officers, employees or agents.
2.15
Legal Proceedings; Orders.
(a)
As of the date of this Agreement, there is no pending Legal Proceeding and, to the Company’s Knowledge, no Person has threatened
in writing to commence any Legal Proceeding: (i) that involves (A) the Company, (B) any of its Subsidiaries, (C) any director or officer
of the Company (in his or her capacity as such) or (D) any of the material assets owned or used by the Company or its Subsidiaries;
or (ii) that challenges, or that would reasonably be expected to have the effect of preventing, delaying, making illegal or otherwise
interfering with, the Contemplated Transactions.
(b)
Except as set forth in Section 2.15(b) of the Company Disclosure Schedule, since January 1, 2020, no Legal Proceeding has been
pending against the Company or any of its Subsidiaries that resulted in material liability to the Company or any of its Subsidiaries.
(c)
There is no order, writ, injunction, judgment or decree to which the Company or any of its Subsidiaries, or any of the material assets
owned or used by the Company or any of its Subsidiaries, is subject. To the Company’s Knowledge, no officer or other employee of
the Company or any of its Subsidiaries are subject to any order, writ, injunction, judgment or decree that prohibits such officer or
employee from engaging in or continuing any conduct, activity or practice relating to the business of the Company or any of its Subsidiaries
or to any material assets owned or used by the Company or any of its Subsidiaries.
2.16
Tax Matters.
(a)
The Company and each of its Subsidiaries have timely filed all income Tax Returns and other material Tax Returns that they were required
to file under applicable Law. All such Tax Returns are correct and complete in all material respects and have been prepared in compliance
with all applicable Law. No written claim has ever been made by any Governmental Body in any jurisdiction where the Company or any of
its Subsidiaries does not file a particular Tax Return or pay a particular Tax that the Company or such Subsidiary is subject to taxation
by that jurisdiction.
(b)
All income and other material Taxes due and owing by the Company or any of its Subsidiaries (whether or not shown on any Tax Return)
have been fully paid. The unpaid Taxes of the Company and its Subsidiaries did not, as of the date of the Company Unaudited Interim Balance
Sheet, materially exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences
between book and Tax items) set forth on the face of the Company Unaudited Interim Balance Sheet. Since the date of the Company Unaudited
Interim Balance Sheet, neither the Company nor any of its Subsidiaries have incurred any material Liability for Taxes outside the Ordinary
Course of Business.
(c)
All Taxes that the Company or any of its Subsidiaries are or were required by Law to withhold or collect have been duly and timely withheld
or collected in all material respects on behalf of its respective employees, independent contractors, stockholders, lenders, customers
or other third parties and, have been timely paid to the proper Governmental Body or other Person or properly set aside in accounts for
this purpose. The Company and its Subsidiaries have complied in all material respects with applicable Laws relating to information reporting
and record retention (including to the extent necessary to claim any exemption from sales Tax collection and maintaining adequate and
current resale certificates to support any such claimed exemptions).
(d)
There are no Encumbrances for material Taxes (other than Taxes not yet due and payable) upon any of the assets of the Company or any
of its Subsidiaries.
(e)
No deficiencies for income or other material Taxes with respect to the Company or any of its Subsidiaries have been claimed, proposed
or assessed by any Governmental Body in writing. There are no pending or ongoing, and, to the Company’s Knowledge, threatened audits,
assessments or other actions for or relating to any liability in respect of a material amount of Taxes of the Company or any of its Subsidiaries.
Neither the Company nor any of its Subsidiaries (or any of their predecessors) have waived any statute of limitations in respect of any
income or other material Taxes or agreed to any extension of time with respect to any income or other material Tax assessment or deficiency.
(f)
Neither the Company nor any of its Subsidiaries have been a United States real property holding corporation within the meaning of Section
897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(g)
Neither the Company nor any of its Subsidiaries are a party to any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement,
or similar agreement or arrangement, other than customary commercial contracts entered into in the Ordinary Course of Business the principal
subject matter of which is not Taxes.
(h)
Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item
of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date as a result of any: (i) change
in method of accounting for Tax purposes made on or prior to the Closing Date; (ii) use of an improper method of accounting for
a Tax period ending on or prior to the Closing Date; (iii) “closing agreement” as described in Section 7121 of the Code
(or any similar provision of state, local or foreign Law) executed on or prior to the Closing Date; (iv) intercompany transaction
or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or
foreign Law) entered into on or prior to the Closing Date; (v) installment sale or open transaction disposition made on or prior
to the Closing Date; (vi) prepaid amount received or deferred revenue accrued on or prior to the Closing Date; (vii) application
of Section 367(d) of the Code to any transfer of intangible property on or prior to the Closing Date; (viii) application of Sections
951 or 951A of the Code (or any similar provision of state, local or foreign Law) to any income received or accrued on or prior to the
Closing Date; or (ix) election under Section 108(i) of the Code (or any similar provision of state, local or foreign Law) made on
or prior to the Closing Date. The Company has not made any election under Section 965(h) of the Code.
(i)
Neither the Company nor any of its Subsidiaries have ever been (i) a member of a consolidated, combined or unitary Tax group (other than
such a group the common parent of which is the Company) or (ii) a party to any joint venture, partnership, or other arrangement that
is treated as a partnership for U.S. federal income Tax purposes. Neither the Company nor any of its Subsidiaries have any Liability
for any material amount of Taxes of any Person (other than the Company and any of its Subsidiaries) under Treasury Regulations Section
1.1502-6 (or any similar provision of state, local, or foreign Law), by contract, as a transferee or successor, or otherwise.
(j)
Neither the Company nor any of its Subsidiaries (i) are a “controlled foreign corporation” as defined in Section 957 of the
Code, (ii) is a “passive foreign investment company” within the meaning of Section 1297 of the Code, or (iii) has ever had
a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise had an office or fixed place of business in a
country other than the country in which it is organized.
(k)
Neither the Company nor any of its Subsidiaries have participated in or been a party to a transaction that, as of the date of this Agreement,
constitutes a “reportable transaction” that is required to be reported to the IRS pursuant to Section 6011 of the Code and
applicable Treasury Regulations thereunder.
(l)
Neither the Company nor any of its Subsidiaries have taken any action, nor to the Company’s Knowledge is there any fact, that would
reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment.
(m)
Neither the Company nor any of its Subsidiaries have availed itself of any Tax relief pursuant to any Pandemic Response Laws that could
reasonably be expected to materially impact the Tax payment and/or Tax reporting obligations of Parent and its Affiliates (including
the Company and its Subsidiaries) after the Closing Date.
For
purposes of this Section 2.16, each reference to the Company or any of its Subsidiaries shall be deemed to include any Person
that was liquidated into, merged with, or otherwise a predecessor to, the Company or any of its Subsidiaries.
2.17
Employee and Labor Matters; Benefit Plans.
(a)
Section 2.17(a) of the Company Disclosure Schedule lists, as of the date of this Agreement, all material Company Benefit Plans.
“Company Benefit Plan” means each (i) “employee benefit plan,” as defined in Section 3(3) of ERISA, whether
or not subject to ERISA, and (ii) any other pension, retirement, deferred compensation, excess benefit, profit-sharing, bonus, incentive,
equity or equity-based, phantom equity, employment (other than at-will employment offer letters on Company’s standard form that
may be terminated without notice and with no penalty to Company or any of its Subsidiaries and other than individual Company Options,
or other compensatory equity award grants made pursuant to Company’s standard forms, in which case only representative standard
forms of such agreements shall be scheduled), consulting, severance, change-of-control, stay or retention, medical, dental, vision, health,
prescription drug, life, disability, cafeteria plan, flexible spending account, employee assistance program, travel assistance, accidental
death & dismemberment, group insurance, retiree medical or life insurance, paid-time-off, holiday, welfare or fringe benefit plan,
program, agreement, contract, or arrangement (other than regular salary or wages) (whether written or unwritten, qualified or nonqualified,
funded or unfunded and including any that have been frozen), in each case, maintained, contributed to, or required to be contributed
to, by the Company or any of its Subsidiaries for the benefit of any current or former employee, director, officer, or independent contractor
of the Company or any of its Subsidiaries or under which the Company or any of its Subsidiaries have or could have any actual or contingent
liability (including, without limitation, as to the result of it being treated as a single employer under Section 414 of the Code with
any other person).
(b)
As applicable with respect to each material Company Benefit Plan, the Company has made available to Parent, true and complete copies
of (i) each material Company Benefit Plan, including all amendments thereto, and in the case of an unwritten material Company Benefit
Plan, a written description thereof, (ii) all current trust documents, investment management contracts, custodial agreements, administrative
services agreements, insurance, and annuity contracts relating thereto, (iii) the current summary plan description and each summary of
material modifications thereto, (iv) the three most recently filed annual reports on Form 5500 and all schedules thereto, (v) the most
recent IRS determination or opinion letter, (vi) the three most recent nondiscrimination testing reports, actuarial reports and financial
statements, (vii) all notices and filings concerning IRS, United States Department of Labor or other Governmental Body audits or investigations
since January 1, 2020, (viii) each written report constituting a valuation of Company Capital Stock for purposes of Sections 409A or
422 of the Code, whether prepared internally by the Company or by an outside, third-party valuation firm, and (ix) all material written
materials provided to employees or participants relating to the amendment, termination, establishment, or increase or decrease in benefits
under any Company Benefit Plan.
(c)
Each Company Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and any
related documents or agreements and the applicable provisions of ERISA, the Code and all other applicable Laws.
(d)
The Company Benefit Plans that are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and that
are intended to meet the qualification requirements of Section 401(a) of the Code have received determination or opinion letters from
the IRS on which they may currently rely to the effect that such plans are qualified under Section 401(a) of the Code, and, to the Company’s
Knowledge, nothing has occurred that would reasonably be expected to materially adversely affect the qualification of such Company Benefit
Plan.
(e)
None of the Company or any Company ERISA Affiliate sponsors, maintains, contributes to, is required to contribute to, or has any actual
or contingent liability with respect to, or has within the past six (6) years sponsored, maintained, contributed to, or been required
to contribute to, (i) any “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) that is subject to
Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) any “multiemployer plan” (within the meaning of Section
3(37) of ERISA), (iii) any “multiple employer plan” (within the meaning of Section 413 of the Code), or (iv) any “multiple
employer welfare arrangement” (within the meaning of Section 3(40) of ERISA), and none of the Company or any Company ERISA Affiliate
has, within the preceding six (6) years, incurred a complete or partial withdrawal from any “multiemployer plan” or otherwise
incurred any liability under Section 4202 of ERISA.
(f)
There are no pending audits or investigations by any Governmental Body involving any Company Benefit Plan, and no pending or, to the
Company’s Knowledge, threatened claims (except for individual claims for benefits payable in the normal operation of the Company
Benefit Plans), suits, or proceedings involving any Company Benefit Plan. All contributions and premium payments required to have been
made under any of the Company Benefit Plans or by applicable Law have been timely made, and neither the Company nor any of its Subsidiaries
have any liability for any unpaid contributions with respect to any Company Benefit Plan (other than contributions that are accrued in
the Ordinary Course of Business).
(g)
Neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any fiduciary, trustee, or administrator of any
Company Benefit Plan has engaged in, or in connection with the Contemplated Transactions will engage in, any transaction with respect
to any Company Benefit Plan that would subject any such Company Benefit Plan, the Company or any of its Subsidiaries or Parent to a Tax,
penalty, or liability for a “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code.
(h)
No Company Benefit Plan provides (i) death, medical, dental, vision, life insurance, or other welfare benefits beyond termination of
service or retirement, other than coverage mandated by Law (including COBRA, for which the covered individual pays the full cost of coverage),
or (ii) death or retirement benefits under a Company Benefit Plan qualified under Section 401(a) of the Code, and neither the Company
nor any of its Subsidiaries have made a written or oral representation promising the same.
(i)
Except as set forth in Section 2.17(i) of the Company Disclosure Schedules, neither the execution of this Agreement, nor the consummation
of the Contemplated Transactions will either alone or in connection with any other event(s) (i) result in any payment becoming due to
any current or former employee, director, officer, independent contractor or other service provider of the Company or any of its Subsidiaries,
(ii) increase any amount of compensation or benefits otherwise payable to any current or former employee, director, officer, independent
contractor or other service provider of the Company or any of its Subsidiaries, (iii) result in the acceleration of the time of payment,
funding or vesting of any benefits under any Company Benefit Plan, (iv) require any contribution or payment to fund any obligation under
any Company Benefit Plan or (v) limit the right to merge, amend or terminate any Company Benefit Plan.
(j)
Neither the execution of this Agreement, nor the consummation of the Contemplated Transactions (either alone or when combined with the
occurrence of any other event, including without limitation, a termination of employment) will result in the receipt or retention by
any person who is a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to the Company
and its Subsidiaries of any payment or benefit that is or could be characterized as a “parachute payment” (within the meaning
of Section 280G of the Code), determined without regard to the application of Section 280G(b)(5) of the Code.
(k)
Each Company Benefit Plan providing for deferred compensation that constitutes a “nonqualified deferred compensation plan”
(as defined in Section 409A(d)(1) of the Code and the regulations promulgated thereunder) is, and has been, established, administered
and maintained in all material respects in compliance with the requirements of Section 409A of the Code and the regulations promulgated
thereunder.
(l)
No Person has any “gross-up” agreements with the Company or any of its Subsidiaries or other assurance of reimbursement or
compensation by the Company or any of its Subsidiaries for any Taxes imposed under Section 409A or Section 4999 of the Code.
(m)
The Company does not have any Company Benefit Plan that is maintained for service providers located outside of the United States.
(n)
Neither the Company nor any of its Subsidiaries are a party to, bound by, or has a duty to bargain under, any collective bargaining agreement
or other Contract with a labor union or labor organization representing any of its employees, and there is no labor union or labor organization
representing or, to the Company’s Knowledge, purporting to represent or seeking to represent any employees of the Company or its
Subsidiaries, including through the filing of a petition for representation election.
(o)
The Company and each of its Subsidiaries is, and since January 1, 2020, has been, in material compliance with all applicable Laws respecting
labor, employment, employment practices, and terms and conditions of employment, including, without limitation, worker classification,
discrimination, wrongful termination, harassment and retaliation, equal employment opportunities, fair employment practices, meal and
rest periods, immigration, employee safety and health, wages (including overtime wages), unemployment and workers’ compensation,
leaves of absence, and hours of work. Except as would not be reasonably likely to result in a material liability to the Company or any
of its Subsidiaries, with respect to employees of the Company or any of its Subsidiaries, each of the Company and its Subsidiaries, since
January 1, 2020: (i) has withheld and reported all amounts required by Law or by agreement to be withheld and reported with respect to
wages, salaries, and other payments, benefits or compensation to employees, (ii) is not liable for any arrears of wages (including overtime
wages), severance pay or any Taxes or penalties for failure to comply with any of the foregoing in any material respect, and (iii) is
not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body with respect
to unemployment compensation benefits, disability, social security or other benefits or obligations for employees (other than routine
payments to be made in the Ordinary Course of Business or as required by Law). There are no actions, suits, claims, charges, demands,
lawsuits, investigations, audits or administrative matters pending or, to the Company’s Knowledge, threatened or reasonably anticipated
against the Company or any of its Subsidiaries relating to any current or former employee, applicant for employment, consultant, employment
agreement or Company Benefit Plan (other than routine claims for benefits). All employees of the Company and its Subsidiaries are employed
“at-will” and their employment can be terminated without advance notice or payment of severance.
(p)
Except as would not be reasonably likely to result in a material liability to the Company or any of its Subsidiaries, with respect to
each individual who currently renders services to the Company or any of its Subsidiaries, the Company and each of its Subsidiaries have
accurately classified each such individual as an employee, independent contractor, or otherwise under all applicable Laws and, for each
individual classified as an employee, the Company and each of its Subsidiaries have accurately classified him or her as overtime eligible
or overtime ineligible under all applicable Laws. Neither the Company nor any of its Subsidiaries have any material liability with respect
to any misclassification of: (a) any Person as an independent contractor rather than as an employee, (b) any employee leased from another
employer, or (c) any employee currently or formerly classified as exempt from overtime wages.
(q)
There is not and has not been since January 1, 2020, nor is there or has there been since January 1, 2020, any threat of, any strike,
slowdown, work stoppage, lockout, union election petition, demand for recognition, or any similar activity or dispute, or, to the Company’s
Knowledge, any union organizing activity, against the Company or any of its Subsidiaries. No event has occurred, and, to the Company’s
Knowledge, no condition or circumstance exists, that might directly or indirectly give rise to or provide a basis for the commencement
of any such strike, slowdown, work stoppage, lockout, union election petition, demand for recognition, or any similar activity or dispute.
2.18
Environmental Matters. The Company and each of its Subsidiaries are in compliance, and since January 1, 2020, have complied, with
all applicable Environmental Laws, which compliance includes the possession by the Company and its Subsidiaries of all permits and other
Governmental Authorizations required under applicable Environmental Laws and compliance with the terms and conditions thereof, except
for any failure to be in such compliance that, either individually or in the aggregate, would not reasonably be expected to result in
a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries have received since January 1, 2020, any written notice
or other communication (in writing or otherwise), whether from a Governmental Body or other Person, that alleges that the Company or
any of its Subsidiaries are not in compliance with or has liability pursuant to any Environmental Law and, to the Company’s Knowledge,
there are no circumstances that would reasonably be expected to prevent or interfere with the Company’s or any of its Subsidiaries’
compliance with any Environmental Law in the future, except where such failure to comply would not reasonably be expected to have a Company
Material Adverse Effect. To the Company’s Knowledge, no current or (during the time a prior property was leased or controlled by
the Company or any of its Subsidiaries) prior property leased or controlled by the Company or any of its Subsidiaries have had a release
of or exposure to Hazardous Materials in material violation of or as would reasonably be expected to result in any material liability
of the Company or any of its Subsidiaries pursuant to Environmental Law. No consent, approval or Governmental Authorization of or registration
or filing with any Governmental Body is required by Environmental Laws in connection with the execution and delivery of this Agreement
or the consummation of the Contemplated Transactions. Prior to the date of this Agreement, the Company has provided or otherwise made
available to Parent true and correct copies of all material environmental reports, assessments, studies and audits in the possession
or control of the Company or any of its Subsidiaries with respect to any property leased or controlled by the Company or any of its Subsidiaries
or any business operated by them.
2.19
Insurance. The Company has delivered or made available to Parent accurate and complete copies of all material insurance policies
and all material self-insurance programs and arrangements relating to the business, assets, liabilities and operations of the Company
and each of its Subsidiaries, as of the date of this Agreement. Each of such insurance policies is in full force and effect and the Company
and each of its Subsidiaries are in compliance in all material respects with the terms thereof. Other than customary end-of-policy notifications
from insurance carriers, since January 1, 2020, neither the Company nor any of its Subsidiaries have received any notice or other communication
regarding any actual or possible: (i) cancellation or invalidation of any insurance policy; or (ii) refusal or denial of any coverage,
reservation of rights or rejection of any material claim under any insurance policy. The Company and each of its Subsidiaries have provided
timely written notice to the appropriate insurance carrier(s) of each Legal Proceeding that is currently pending against the Company
or any of its Subsidiaries for which the Company or such Subsidiary has insurance coverage, and no such carrier has issued a denial of
coverage or a reservation of rights with respect to any such Legal Proceeding, or informed the Company or any of its Subsidiaries of
its intent to do so.
2.20
No Financial Advisors. Except as set forth in Section 2.20 of the Company Disclosure Schedule, no broker, finder or investment
banker is entitled to any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee or other fee or commission in
connection with the Contemplated Transactions based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.
2.21
Disclosure. The information supplied by or on behalf of the Company and each of its Subsidiaries for inclusion or incorporation
by reference in the Registration Statement, or to be included or supplied by or on behalf of the Company and each of its Subsidiaries
for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a
“Regulation M-A Filing”), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed
with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC, as
applicable, contain any statement that, at such time and in light of the circumstances under which it shall be made, is false or misleading
with respect to any material fact, or omit to state any material fact necessary in order to make the statements therein not false or
misleading, or omit to state any material fact necessary to correct any statement therein that has become false or misleading. The information
supplied by or on behalf of the Company and each of its Subsidiaries for inclusion or incorporation by reference in the Proxy Statement,
which information shall be deemed to include all information about or related to the Company or any of its Subsidiaries and/or the Company
Stockholder Matters, shall not, on the date the Proxy Statement is first mailed to Parent’s stockholders, or at the time of the
Parent Stockholders’ Meeting or as of the Effective Time, contain any statement that, at such time and in light of the circumstances
under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary
in order to make the statements made in the Proxy Statement not false or misleading, or omit to state any material fact necessary to
correct any statement in any earlier communication with respect to the solicitation of proxies for the Parent Stockholders’ Meeting
that has become false or misleading.
2.22
Transactions with Affiliates.
(a)
Except as set forth in Section 2.22(a) of the Company Disclosure Schedule, there are no material transactions or relationships,
since January 1, 2020, between, on one hand, the Company or any of its Subsidiaries and, on the other hand, any (i) executive officer
or director of the Company or, to the Company’s Knowledge, any of its Subsidiaries or any of such executive officer’s or
director’s immediate family members, (ii) owner of more than 5% of the voting power of the outstanding Company Capital Stock or
(iii) to the Company’s Knowledge, any “related person” (within the meaning of Item 404 of Regulation S-K as promulgated
under the Securities Act) of any such executive officer, director or stockholder (other than the Company or its Subsidiaries) in the
case of each of (i), (ii) or (iii) that is of the type that would be required to be disclosed under Item 404 of Regulation S-K as promulgated
under the Securities Act (assuming the Company was subject to the public reporting requirements of the Exchange Act).
(b)
Section 2.22(b) of the Company Disclosure Schedule lists each stockholders’ agreement, voting agreement, registration rights
agreement, co-sale agreement or other similar Contract between the Company and any holders of Company Capital Stock, including any such
Contract granting any Person investor rights, rights of first refusal, rights of first offer, registration rights, director designation
rights or similar rights (collectively, the “Investor Agreements”).
2.23
Anti-Bribery. None of the Company or any of its Subsidiaries or any of their respective directors, officers, employees or, to
the Company’s Knowledge, agents or any other Person acting on their behalf has, directly or indirectly, made any bribes, rebates,
payoffs, influence payments, kickbacks, illegal payments, illegal political contributions, or other payments, in the form of cash, gifts,
or otherwise, or taken any other action, in violation of the Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010 or any
other anti-bribery or anti-corruption Law (collectively, the “Anti-Bribery Laws”). Neither the Company nor any of
its Subsidiaries are or has been the subject of any investigation or inquiry by any Governmental Body with respect to potential violations
of Anti-Bribery Laws.
2.24
Disclaimer of Other Representations or Warranties. Except as previously set forth in this Section 2 or in any certificate
delivered by the Company to Parent and/or Merger Sub pursuant to this Agreement, the Company makes no representation or warranty, express
or implied, at law or in equity, with respect to it or any of its assets, liabilities or operations, and any such other representations
or warranties are hereby expressly disclaimed.
SECTION
3. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Subject
to Section 10.13(h), except (a) as set forth in the written disclosure schedule delivered by Parent to the Company (the “Parent
Disclosure Schedule”) or (b) as disclosed in the Parent SEC Documents filed with, or furnished to, the SEC at least two Business
Days prior to the date of this Agreement and publicly available on the SEC’s Electronic Data Gathering Analysis and Retrieval system
that is reasonably apparent on the face of such disclosure to be applicable to the representations and warranties herein (but (i) without
giving effect to any amendment thereof filed with, or furnished to, the SEC on or after the date of this Agreement and (ii) excluding
any disclosures contained under the heading “Risk Factors” and any disclosure of risks included in any “forward-looking
statements” disclaimer or in any other section to the extent they are forward-looking statements or cautionary, predictive or forward-looking
in nature), Parent and Merger Sub represent and warrant to the Company as follows:
3.1
Due Organization; Subsidiaries.
(a)
Each of Parent and Merger Sub is a corporation duly incorporated, validly existing and in good standing under the Laws of its jurisdiction
of incorporation, and has all necessary corporate power and authority: (i) to conduct its business in the manner in which its business
is currently being conducted; (ii) to own or lease and use its property and assets in the manner in which its property and assets
are currently owned or leased and used; and (iii) to perform its obligations under all Contracts by which it is bound, except where
the failure to have such power or authority would not reasonably be expected to prevent or materially delay the ability of Parent and
Merger Sub to consummate the Contemplated Transactions. Since the date of its incorporation, Merger Sub has not engaged in any activities
other than activities incident to its formation or in connection with or as contemplated by this Agreement.
(b)
Parent is duly licensed and qualified to do business, and is in good standing (to the extent applicable in such jurisdiction), under
the Laws of all jurisdictions where the nature of its business requires such licensing or qualification other than in jurisdictions where
the failure to be so qualified individually or in the aggregate would not be reasonably expected to have a Parent Material Adverse Effect.
(c)
Parent has no Subsidiaries, except for the Entities identified in Section 3.1(c) of the Parent Disclosure Schedule; and neither
Parent nor any of the Entities identified in Section 3.1(c) of the Parent Disclosure Schedule owns any capital stock of, or any
equity, ownership or profit sharing interest of any nature in, or controls directly or indirectly, any other Entity other than the Entities
identified in Section 3.1(c) of the Parent Disclosure Schedule. Each of Parent’s Subsidiaries is a corporation or other
legal entity duly organized, validly existing and, if applicable, in good standing under the Laws of the jurisdiction of its organization
and has all necessary corporate or other power and authority to conduct its business in the manner in which its business is currently
being conducted and to own or lease and use its property and assets in the manner in which its property and assets are currently owned
or leased and used, except where the failure to have such power or authority would not be reasonably expected to have a Parent Material
Adverse Effect.
(d)
Neither Parent nor any of its Subsidiaries are or has otherwise been, directly or indirectly, a party to, member of or participant in
any partnership, joint venture or similar business entity. Neither Parent nor any of its Subsidiaries have agreed or is obligated to
make, or is bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any
other Entity. Neither Parent nor any of its Subsidiaries have, at any time, been a general partner of, or has otherwise been liable for
any of the debts or other obligations of, any general partnership, limited partnership, or other Entity.
3.2
Organizational Documents. Parent has made available to the Company accurate and complete copies of the Organizational Documents
of Parent and each of its Subsidiaries in effect as of the date of this Agreement. Neither Parent nor any of its Subsidiaries are in
breach or violation of its respective Organizational Documents in any material respect.
3.3
Authority; Binding Nature of Agreement. Each of Parent and Merger Sub has all necessary corporate power and authority to
enter into this Agreement and, subject, with respect to Parent, to receipt of the Required Parent Stockholder Vote and, with respect
to Merger Sub, the adoption of this Agreement by Parent in its capacity as sole stockholder of Merger Sub, to perform its obligations
under this Agreement and to consummate the Contemplated Transactions. The Parent Board (at meetings duly called and held or by written
consent in lieu of a meeting) has: (a) determined that the Contemplated Transactions are fair to, advisable and in the best interests
of Parent and its stockholders; (b) authorized, approved and declared advisable this Agreement and the Contemplated Transactions,
including the issuance of shares of Parent Common Stock to the stockholders of the Company pursuant to the terms of this Agreement, the
change of control of Parent and other actions contemplated by this Agreement; (c) recommended, upon the terms and subject to the
conditions set forth in this Agreement, that the stockholders of Parent vote to approve the Parent Stockholder Matters; and (d)
approved the Parent Stockholder Support Agreements and the transactions contemplated thereby. The Merger Sub Board (by written consent)
has: (x) determined that the Contemplated Transactions are fair to, advisable and in the best interests of Merger Sub and its sole stockholder;
(y) authorized, approved and declared advisable this Agreement and the Contemplated Transactions; and (z) determined to recommend,
upon the terms and subject to the conditions set forth in this Agreement, that the sole stockholder of Merger Sub vote to approve this
Agreement and the Contemplated Transactions. This Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming
the due authorization, execution and delivery by the Company, constitutes the legal, valid and binding obligation of Parent and Merger
Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, subject to the Enforceability Exceptions.
3.4
Vote Required. The affirmative vote (i) of the holders of a majority of the outstanding Parent Common Stock, Parent Series A Preferred
Stock and Parent Series B Preferred Stock, each as a separate class, is the only vote of the holders of any class or series of Parent
Capital Stock necessary to approve the proposal in Sections 5.3(a)(v), (ii) of a majority of the votes cast by the Parent Common
Stock is the only vote of the holders of any class or series of Parent Capital Stock necessary to approve the proposals in Section
5.3(a)(i), Section 5.3(a)(iii), Sections 5.3(a)(iv), Sections 5.3(a)(vi), Section 5.3(a)(vii) and Section
5.3(a)(viii) and (iii) if determined to be required by Parent and subject to the structure and timing of the Asset Dispositions,
if any, of the holders of a majority of the votes cast by the Parent Common Stock and of the holders of a majority of the outstanding
Parent Series A Preferred Stock and Parent Series B Preferred Stock, each as a separate class, is the only vote of the holders of any
class or series of Parent Capital Stock necessary to approve the proposals in Section 5.3(a)(ii) (the “Required Parent
Stockholder Vote”).
3.5
Non-Contravention; Consents. Subject to obtaining the Required Parent Stockholder Vote, the adoption of this Agreement (effective
immediately following the execution of this Agreement) by Parent as the sole stockholder of Merger Sub and the filing of the Statement
of Merger required by the ABCL, neither (a) the execution, delivery or performance of this Agreement by Parent or Merger Sub, nor (b)
the consummation of the Contemplated Transactions, will directly or indirectly (with or without notice or lapse of time):
(i)
contravene, conflict with or result in a violation of any of the provisions of the Organizational Documents of Parent or any of its Subsidiaries;
(ii)
contravene, conflict with or result in a violation of, or give any Governmental Body or other Person the right to challenge the Contemplated
Transactions or to exercise any remedy or obtain any relief under, any Law or any order, writ, injunction, judgment or decree to which
Parent or any of its Subsidiaries, or any of the assets owned or used by Parent or any of its Subsidiaries, is subject, except as would
not reasonably be expected to constitute, individually or in the aggregate, a Parent Material Adverse Effect;
(iii)
contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by Parent or its Subsidiaries, except
as would not reasonably be expected to constitute, individually or in the aggregate, a Parent Material Adverse Effect;
(iv)
contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Parent Material Contract,
or give any Person the right to: (A) declare a default or exercise any remedy under any Parent Material Contract; (B) any material
payment, rebate, chargeback, penalty or change in delivery schedule under any Parent Material Contract; (C) accelerate the maturity
or performance of any Parent Material Contract; or (D) cancel, terminate or modify any term of any Parent Material Contract, except
in the case of any non-material breach, default, penalty or modification; or
(v)
result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by Parent or any of its Subsidiaries
(except for Permitted Encumbrances).
Except
for (A) any Consent set forth in Section 3.5 of the Parent Disclosure Schedule under any Parent Material Contract, (B) the Required
Parent Stockholder Vote, (C) the filing of the Statement of Merger with the Secretary of State of the State of Alabama pursuant to the
ABCL, and (D) such consents, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be required under
applicable federal and state securities Laws, neither Parent nor any of its Subsidiaries were, are or will be required to make any filing
with or give any notice to, or to obtain any Consent from, any Person in connection with (x) the execution, delivery or performance of
this Agreement, or (y) the consummation of the Contemplated Transactions, which if individually or in the aggregate were not given or
obtained, would reasonably be expected to prevent or materially delay the ability of Parent and Merger Sub to consummate the Contemplated
Transactions. The Parent Board and the Merger Sub Board have taken and will take all actions necessary to ensure that the restrictions
applicable to business combinations contained in the ABCL and Section 203 of the DGCL are, and will be, inapplicable to the execution,
delivery and performance of this Agreement, the Parent Stockholder Support Agreements, the Parent Lock-Up Agreements, and to the consummation
of the Contemplated Transactions. No other state takeover statute or similar Law applies or purports to apply to the Merger, this Agreement,
the Parent Stockholder Support Agreements, the Parent Lock-Up Agreements or any of the Contemplated Transactions.
3.6
Capitalization.
(a)
The authorized capital stock of Parent consists of (i) 100,000,000 shares of Parent Common Stock, par value $0.0001 per share, of which
37,951,261 shares have been issued and are outstanding as of the close of business on the Reference Date, and (ii) 5,000,000 shares of
preferred stock of Parent, par value $0.0001 per share (the “Parent Preferred Stock”), 211,600 shares of which have
been designated as Series A Preferred Stock (the “Parent Series A Preferred Stock”), all of which have been issued
and are outstanding as of the date of this Agreement, and 148,400 shares of which have been designated as Series B Preferred Stock (the
“Parent Series B Preferred Stock”), all of which have been issued and are outstanding as of the date of this Agreement,
and the balance is available for designation by the Parent Board. Parent does not hold any shares of its capital stock in its treasury.
Section 3.6(a) of the Parent Disclosure Schedule lists, on the date of the Reference Date, (A) each holder of issued and outstanding
Parent Preferred Stock, (B) each holder of issued and outstanding Parent Warrants, (C) the number and type of shares subject to each
Parent Warrant, (D) the exercise price of each Parent Warrant and (E) the termination date of each Parent Warrant.
(b)
All of the outstanding shares of Parent Common Stock and Parent Preferred Stock have been duly authorized and validly issued, and are
fully paid and nonassessable. None of the outstanding shares of Parent Capital Stock is entitled or subject to any preemptive right,
right of participation, right of maintenance or any similar right and none of the outstanding shares of Parent Common Stock is subject
to any right of first refusal in favor of Parent. Except as contemplated herein and as set forth in Section 3.6(b)(i) of the Parent
Disclosure Schedule, there is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing,
selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Capital Stock.
Except as set forth in Section 3.6(b)(ii) of the Parent Disclosure Schedule, Parent is not under any obligation, nor is it bound
by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent
Capital Stock or other securities. Section 3.6(b)(iii) of the Parent Disclosure Schedule accurately and completely describes all
repurchase rights held by Parent with respect to shares of Parent Capital Stock (including shares issued pursuant to the exercise of
stock options) and specifies which of those repurchase rights are currently exercisable.
(c)
Except for the Parent Incentive Plan, Parent does not have any stock option plan or any other plan, program, agreement or arrangement
providing for any equity-based compensation for any Person. As of the date of the Reference Date, Parent has reserved 4,000,000 shares
of Parent Common Stock for issuance under the Parent Incentive Plan, of which no shares have been issued and are currently outstanding,
of which no shares are subject to Parent’s right of repurchase, 3,286,800 shares have been reserved for issuance upon exercise
of Parent Options previously granted and currently outstanding under the Parent Incentive Plan, no shares have been reserved for issuance
upon the settlement of Parent RSUs granted under the Parent Incentive Plan that are outstanding as of the close of business on the Reference
Date and 713,200 shares remain available for future issuance pursuant to the Parent Incentive Plan. Section 3.6(c) of the Parent
Disclosure Schedule sets forth the following information with respect to each Parent Option outstanding as of the Reference Date: (i)
the name of the optionee; (ii) the number of shares of Parent Common Stock subject to such Parent Option at the time of grant;
(iii) the number of shares of Parent Common Stock subject to such Parent Option as of the Reference Date; (iv) the exercise price
of such Parent Option; (v) the date on which such Parent Option was granted; (vi) the applicable vesting schedule, including
the number of vested and unvested shares as of the Reference Date; (vii) the date on which such Parent Option expires; and
(viii) whether such Parent Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option.
Parent has made available to the Company accurate and complete copies of equity incentive plans pursuant to which Parent has equity-based
awards, the forms of all award agreements evidencing such equity-based awards and evidence of board and stockholder approval of the Parent
Incentive Plan and any amendments thereto.
(d)
Except for the Parent Warrants, the Parent Incentive Plan, including the Parent Options, the Parent RSUs, and as otherwise set forth
in Section 3.6(d) of the Parent Disclosure Schedule, as of the Reference Date there is no: (i) outstanding subscription, option,
call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent
or any of its Subsidiaries; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable
for any shares of the capital stock or other securities of Parent or any of its Subsidiaries; (iii) stockholder rights plan (or
similar plan commonly referred to as a “poison pill”) or Contract under which Parent or any of its Subsidiaries are or may
become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance
that could be reasonably likely to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such
Person is entitled to acquire or receive any shares of capital stock or other securities of Parent or any of its Subsidiaries. There
are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to Parent
or any of its Subsidiaries.
(e)
All outstanding shares of Parent Common Stock, Parent Preferred Stock, Parent Options, Parent RSUs, Parent Warrants and other securities
of Parent have been issued and granted in material compliance with (i) all applicable securities Laws and other applicable Laws, and
(ii) all requirements set forth in applicable Contracts.
3.7
SEC Filings; Financial Statements.
(a)
Other than such documents that can be obtained on the SEC’s website at www.sec.gov, Parent has delivered or made available to the
Company accurate and complete copies of all registration statements, proxy statements, Certifications (as defined below) and other statements,
reports, schedules, forms and other documents filed by Parent with the SEC since March 29, 2022 (the “Parent SEC Documents”).
All material statements, reports, schedules, forms and other documents required to have been filed by Parent or its officers with the
SEC have been so filed on a timely basis. As of the time it was filed with the SEC (or, if amended or superseded by a filing prior to
the date of this Agreement, then on the date of such filing), each of the Parent SEC Documents complied in all material respects with
the applicable requirements of the Securities Act or the Exchange Act (as the case may be) and, as of the time they were filed, none
of the Parent SEC Documents 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 light of the circumstances under which they were made, not misleading.
The certifications and statements required by (i) Rule 13a-14 under the Exchange Act and (ii) 18 U.S.C. §1350 (Section 906 of the
Sarbanes-Oxley Act) relating to the Parent SEC Documents (collectively, the “Certifications”) are accurate and complete
and comply as to form and content with all applicable Laws. As used in this Section 3.7, the term “file” and variations
thereof shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made
available to the SEC.
(b)
The financial statements (including any related notes) contained or incorporated by reference in the Parent SEC Documents: (i) complied
as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in
accordance with GAAP (except as may be indicated in the notes to such financial statements or, in the case of unaudited financial statements,
except as permitted by the SEC on Form 10-Q under the Exchange Act, and except that the unaudited financial statements may not contain
footnotes and are subject to normal and recurring year-end adjustments that are not reasonably expected to be material in amount) applied
on a consistent basis unless otherwise noted therein throughout the periods indicated; and (iii) fairly present, in all material
respects, the financial position of Parent and its consolidated Subsidiaries as of the respective dates thereof and the results of operations
and cash flows of Parent and its consolidated Subsidiaries for the periods covered thereby. Other than as expressly disclosed in the
Parent SEC Documents filed prior to the date of this Agreement, there has been no material change in Parent’s accounting methods
or principles that would be required to be disclosed in Parent’s financial statements in accordance with GAAP. The books of account
and other financial records of Parent and each of its Subsidiaries are true and complete in all material respects.
(c)
As of the date of this Agreement, Parent is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley
Act and the applicable current listing and governance rules and regulations of NYSE.
(d)
Parent maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act)
that is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP, including policies and procedures designed to provide reasonable assurance (i) that Parent
maintains records that in reasonable detail accurately and fairly reflect Parent’s transactions and dispositions of assets, (ii)
that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, (iii) that receipts
and expenditures are made only in accordance with authorizations of management and the Parent Board and (iv) regarding prevention or
timely detection of the unauthorized acquisition, use or disposition of Parent’s assets that could have a material effect on Parent’s
financial statements. Parent has evaluated the effectiveness of Parent’s internal control over financial reporting as of December
31, 2022, and, to the extent required by applicable Law, presented in any applicable Parent SEC Document that is a report on Form 10-K
or Form 10-Q (or any amendment thereto) its conclusions about the effectiveness of the internal control over financial reporting as of
the end of the period covered by such report or amendment based on such evaluation. Parent has disclosed, based on its most recent evaluation
of internal control over financial reporting, to Parent’s auditors and the audit committee of the Parent Board (and made available
to the Company a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses, if
any, in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect Parent’s
ability to record, process, summarize and report financial information and (B) any known fraud, whether or not material, that involves
management or other employees who have a significant role in Parent’s or its Subsidiaries’ internal control over financial
reporting. Parent has not identified, based on its most recent evaluation of internal control over financial reporting, any material
weaknesses in the design or operation of Parent’s internal control over financial reporting.
(e)
Parent maintains “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) that
are reasonably designed to ensure that information required to be disclosed by Parent in the periodic reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within the required time periods, and that all such information
is accumulated and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure and
to make the Certifications.
(f)
To the Knowledge of Parent, Parent’s auditor has at all times since the date of enactment of the Sarbanes-Oxley Act been: (i) a
registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act); (ii) with respect to Parent, “independent”
with respect to Parent within the meaning of Regulation S-X under the Exchange Act; and (iii) to the Knowledge of Parent, in compliance
with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public
Company Accounting Oversight Board thereunder.
(g)
Except as set forth in Section 3.7(g) of the Parent Disclosure Schedule, since March 29, 2022, Parent has not received any comment
letter from the SEC or the staff thereof or any correspondence from NYSE or the staff thereof relating to the delisting or maintenance
of listing of the Parent Common Stock on NYSE that has not been disclosed in the Parent SEC Documents. Parent has not disclosed any unresolved
comments.
(h)
Since March 29, 2022, there have been no formal internal investigations regarding financial reporting or accounting policies and practices
discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, or general counsel
of Parent, the Parent Board or any committee thereof, other than ordinary course audits or reviews of accounting policies and practices
or internal controls required by the Sarbanes-Oxley Act.
3.8
Absence of Changes. Except as set forth in Section 3.8 of the Parent Disclosure Schedule and except for reasonable and
good faith actions or omissions taken to comply with applicable Law or guidance by a Governmental Body in connection with the COVID-19
pandemic, between the date of the Parent Balance Sheet and the date of this Agreement, Parent has conducted its business only in the
Ordinary Course of Business (except for the execution and performance of this Agreement and the discussions, negotiations and transactions
related thereto, including the Contemplated Transactions) and there has not been any (a) Parent Material Adverse Effect or (b) action,
event or occurrence that would have required the consent of the Company pursuant to Section 4.1(b) had such action, event or occurrence
taken place after the execution and delivery of this Agreement.
3.9
Absence of Undisclosed Liabilities. As of the date of this Agreement, neither Parent nor any of its Subsidiaries have any Liability,
individually or in the aggregate, of a type required to be recorded or reflected on Parent’s balance sheet or disclosed in the
footnotes thereto under GAAP except for: (a) Liabilities disclosed, reflected or reserved against in the Parent Balance Sheet; (b)
normal and recurring current Liabilities that have been incurred by Parent or any of its Subsidiaries since the date of the Parent Balance
Sheet in the Ordinary Course of Business and which are not in excess of $100,000 in the aggregate; (c) Liabilities for performance
of obligations of Parent or any of its Subsidiaries under Parent Material Contracts which have not resulted from a breach of such Parent
Material Contracts, breach of warranty, tort, infringement or violation of Law; (d) Liabilities incurred in connection with the
Contemplated Transactions; and (e) Liabilities described in Section 3.9 of the Parent Disclosure Schedule.
3.10
Title to Assets. Parent and each of its Subsidiaries owns, and has good and valid title to, or, in the case of leased properties
and assets, valid leasehold interests in, all tangible properties or tangible assets and equipment used or held for use in its business
or operations or purported to be owned by it, including: (a) all tangible assets reflected on the Parent Balance Sheet; and (b)
all other tangible assets reflected in the books and records of Parent or any of its Subsidiaries as being owned by Parent or such Subsidiary.
All of such assets are owned or, in the case of leased assets, leased by Parent or its applicable Subsidiary free and clear of any Encumbrances,
other than Permitted Encumbrances.
3.11
Real Property; Leasehold. Neither Parent nor any of its Subsidiaries owns or has ever owned any real property. Parent has
made available to the Company (a) an accurate and complete list of all real properties with respect to which Parent directly or indirectly
holds a valid leasehold interest as well as any other real estate that is in the possession of or leased by Parent or any of its Subsidiaries,
and (b) copies of all leases under which any such real property is possessed (the “Parent Real Estate Leases”), each
of which is in full force and effect, with no existing material default thereunder. Parent’s or its applicable Subsidiary’s
use and operation of each such leased property conforms to all applicable Laws in all material respects, and Parent or its applicable
Subsidiary has exclusive possession of each such leased property and has not granted any occupancy rights to tenants or licensees with
respect to such leased property. In addition, each such leased property is free and clear of all Encumbrances other than Permitted Encumbrances.
3.12
Intellectual Property.
(a)
Section 3.12(a) of the Parent Disclosure Schedule identifies each item of Registered IP owned in whole or in part by Parent or
its Subsidiaries (“Parent Owned Registered IP”). To Parent’s Knowledge, each of the patents and patent applications
included in the Parent Owned Registered IP properly identifies by name each and every inventor of the inventions claimed therein as determined
in accordance with applicable Laws of the United States. To Parent’s Knowledge, (A) Parent Owned Registered IP is valid, enforceable
and subsisting, (B) none of Parent Owned Registered IP has been misused, withdrawn, canceled or abandoned, and (C) all application, registration,
issuance, renewal and maintenance fees for Parent Owned Registered IP having a final due date on or before the date of this Agreement
have been timely paid in full. To Parent’s Knowledge, with respect to each item of Parent Owned Registered IP and each patent application
from which such Parent Owned Registered IP claims priority, all statements made and information presented to the applicable patent office
by or on behalf of Parent or its Subsidiaries or any inventor thereof, or their respective patent counsel, during the prosecution thereof
are accurate and complete and comply with 37 CFR 1.56. As of the date of this Agreement, no interference, opposition, reissue, reexamination
or other proceeding of any nature (other than initial examination proceedings) is pending or, to Parent’s Knowledge, threatened
in writing, in which the scope, validity, enforceability or ownership of any Parent Owned Registered IP is being or has been contested
or challenged.
(b)
Parent or its Subsidiaries solely owns all right, title and interest in and to all Parent IP (other than as disclosed in Section 3.12(a)
of the Parent Disclosure Schedule and except for any failure to own or have such right to use, or have the right to bring actions
that would not reasonably be expected to have a Parent Material Adverse Effect), free and clear of all Encumbrances other than Permitted
Encumbrances and, to Parent’s Knowledge, has the right, pursuant to a Parent In-bound License to use all other material Intellectual
Property Rights used by Parent or its Subsidiaries in their respective businesses as currently conducted. The Parent IP and the Intellectual
Property Rights licensed to Parent or its Subsidiaries pursuant to a Parent In-bound License (the “Parent In-Licensed IP”)
are all the Intellectual Property Rights necessary to operate the business of Parent and its Subsidiaries as currently conducted and
to the Parent’s Knowledge, as proposed to be conducted, as of the date of this Agreement. No Parent Associate owns or has any claim,
right (whether or not currently exercisable) or interest to or in any Parent IP, and each Parent Associate involved in the creation or
development of any material Parent IP, pursuant to such Parent Associate’s activities on behalf of Parent or its Subsidiaries,
has signed a valid, enforceable written agreement containing a present assignment of all of such Parent Associate’s each Parent
Associate involved in the creation or development of any material Parent IP, pursuant to such Parent Associate’s activities on
behalf of Parent or its Subsidiaries, has signed a valid, enforceable written agreement containing a present assignment of all such Parent
Associate’s rights in such material Parent IP to Parent or its Subsidiaries (without further payment being owed to any such Parent
Associate and without any restrictions or obligations on Parent’s or its Subsidiaries’ ownership or use thereof) and confidentiality
provisions protecting the Parent IP, which, to Parent’s Knowledge, has not been materially breached by such Parent Associate. Without
limiting the foregoing, Parent and its Subsidiaries have taken commercially reasonable steps to protect, maintain and enforce all Parent
IP, and, as required, Parent In-Licensed IP, including the secrecy, confidentiality and value of trade secrets and other confidential
information therein (as applicable), and to Parent’s Knowledge there have been no unauthorized disclosures by Parent or its Subsidiaries
of any confidential information or trade secrets associated with Parent IP or Parent In-Licensed IP.
(c)
Except as disclosed in Section 3.12(c) of the Parent Disclosure Schedule, to Parent’s Knowledge, no funding, facilities
or personnel of any Governmental Body or any university, college, research institute or other educational or academic institution has
been used, in whole or in part, to create any Parent IP or any Parent In-Licensed IP, except for any such funding or use of facilities
or personnel that does not result in such Governmental Body or institution obtaining ownership or other rights (including any “march
in” rights or a right to direct the location of manufacturing of products) to such Parent IP or the right to receive royalties
or other consideration for the practice of such Parent IP.
(d)
Section 3.12(d) of Parent Disclosure Schedule sets forth each license agreement pursuant to which Parent or any of its Subsidiaries
(i) is granted a license under any Intellectual Property Right owned by any third party that is used by Parent or any of its Subsidiaries
in its business as currently conducted or, to Parent’s Knowledge, as proposed to be conducted as of the date of this Agreement
(each a “Parent In-bound License”) or (ii) grants to any third party a license under any material Parent IP or any
material Intellectual Property Right licensed to Parent or any of its Subsidiaries under a Parent In-bound License (each a “Parent
Out-bound License”) (provided, that Parent In-bound Licenses shall not include material transfer agreements, clinical
trial agreements, services agreements, non-disclosure agreements, commercially available Software-as-a-Service offerings, off-the-shelf
software licenses or generally available patent license agreements, in each case, entered into in the Ordinary Course of Business on
a non-exclusive basis and that do not grant any commercial rights to any products or services of Parent or any of its Subsidiaries;
and Parent Out-bound Licenses shall not include material transfer agreements, clinical trial agreements, services agreements, non-disclosure
agreements, or non-exclusive outbound licenses entered into in the Ordinary Course of Business on a non-exclusive basis and that do not
grant any commercial rights to any products or services of Parent or any of its Subsidiaries). Neither Parent nor its Subsidiaries nor,
to Parent’s Knowledge, any other party to any Parent In-bound License or Parent Out-bound License has breached or is in breach
of any of its obligations under any Parent In-bound License or Parent Out-bound License.
(e)
To Parent’s Knowledge, (i) the operation of the businesses of Parent and its Subsidiaries as currently conducted or as proposed
to be conducted as of the date of this Agreement does not infringe or misappropriate or otherwise violate any other Intellectual Property
Right owned by any other Person; and (ii) no other Person is infringing, misappropriating or otherwise violating any Parent IP or
any Intellectual Property Rights exclusively licensed to Parent or any of its Subsidiaries. As of the date of this Agreement, no Legal
Proceeding is pending (or, to Parent’s Knowledge, is threatened in writing) (A) against Parent or any of its Subsidiaries alleging
that the operation of the businesses of Parent or its Subsidiaries infringes or constitutes the misappropriation or other violation of
any Intellectual Property Rights of another Person or (B) by Parent or any of its Subsidiaries alleging that another Person has infringed,
misappropriated or otherwise violated any of Parent IP or any Parent In- Licensed IP. Since January 1, 2020, neither Parent nor any of
its Subsidiaries have received any written notice or other written communication alleging that the operation of the businesses of Parent
or any of its Subsidiaries infringes or constitutes the misappropriation or other violation of any Intellectual Property Right of another
Person.
(f)
None of the Parent IP or, to the Parent’s Knowledge, any Parent In-Licensed IP (i) is subject to any pending or outstanding injunction,
directive, order, decree, settlement, judgment or other disposition of dispute that adversely and materially restricts the use, transfer,
registration or licensing by the Parent or its Subsidiaries or (ii) would reasonably be expected to adversely affect the validity, scope,
use, registrability, or enforceability thereof.
(g)
To Parent’s Knowledge, the Parent, its Subsidiaries, and the operation of Parent’s and its Subsidiaries’ business are
in substantial compliance with all applicable Laws pertaining to data privacy and data security of Sensitive Data, except to the extent
that such noncompliance has not and would not reasonably be expected to have a Parent Material Adverse Effect. To Parent’s Knowledge,
since January 1, 2020, there have been (i) no material losses or thefts of data or security breaches relating to Sensitive Data used
in the business of Parent or its Subsidiaries, (ii) no violations of any security policy of Parent or its Subsidiaries regarding any
such Sensitive Data, (iii) no unauthorized access or unauthorized use of any Sensitive Data used in the business of Parent or its Subsidiaries
and (iv) no unintended or improper disclosure of any personally identifiable information in the possession, custody or control of Parent
or its Subsidiaries or a contractor or agent acting on behalf of Parent or its Subsidiaries, in each case of (i) through (iv), except
as would not reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse Effect.
(h)
None of Parent or its Subsidiaries are now or has ever been a member or promoter of, or a contributor to, any industry standards body
or any similar organization that would reasonably be expected to require or obligate Parent or any of its Subsidiaries to grant or offer
to any other Person any license or right to any Parent IP or Parent In-Licensed IP.
3.13
Agreements, Contracts and Commitments.
(a)
Section 3.13 of the Parent Disclosure Schedule lists the following Parent Contracts in effect as of the date of this Agreement
(other than any Parent Benefit Plan) (each, a “Parent Material Contract” and collectively, the “Parent Material
Contracts”):
(i)
a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act;
(ii)
each Parent Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of Business;
(iii)
each Parent Contract containing (A) any covenant limiting the freedom of Parent or any of its Subsidiaries to engage in any line of business
or compete with any Person, (B) any “most-favored nations” pricing provisions or marketing or distribution rights related
to any products or territory, (C) any exclusivity provision, (D) any agreement to purchase minimum quantity of goods or services, or
(E) any material non-solicitation provisions applicable to Parent or any of its Subsidiaries;
(iv)
each Parent Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $50,000 pursuant
to its express terms and not cancelable without penalty;
(v)
each Parent Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity;
(vi)
each Parent Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements
or instruments relating to the borrowing of money or extension of credit in excess of $50,000 or creating any material Encumbrances with
respect to any assets of Parent or any of its Subsidiaries or any loans or debt obligations with officers or directors of Parent or any
of its Subsidiaries;
(vii)
each Parent Contract requiring payment by or to Parent or any of its Subsidiaries after the date of this Agreement in excess of $300,000
pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions);
(B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of
Parent or any of its Subsidiaries; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, collaboration,
development or other agreement currently in force under which Parent or any of its Subsidiaries have continuing obligations to develop
or market any product, technology or service, or any agreement pursuant to which Parent or any of its Subsidiaries have continuing obligations
to develop any Intellectual Property Rights that will not be owned, in whole or in part, by Parent or any of its Subsidiaries; or
(D) any Contract to license any third party to manufacture or produce any product, service or technology of Parent or any of its Subsidiaries
or any Contract to sell, distribute or commercialize any products or service of Parent or any of its Subsidiaries, in each case, except
for Contracts entered into in the Ordinary Course of Business;
(viii)
each Parent Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory
services to Parent in connection with the Contemplated Transactions;
(ix)
each Parent Real Estate Lease;
(x)
each Parent Contract with any Governmental Body;
(xi)
each Parent Out-bound License and Parent In-bound License;
(xii)
each Parent Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of Parent or any of its
Subsidiaries; or
(xiii)
any other Parent Contract that is not terminable at will (with no penalty or payment) by Parent or its Subsidiaries, as applicable, and
(A) which involves payment or receipt by Parent or its Subsidiaries after the date of this Agreement under any such agreement, contract
or commitment of more than $300,000 in the aggregate, or (B) that is material to the business or operations of Parent and its Subsidiaries,
taken as a whole.
(b)
Parent has delivered or made available to the Company accurate and complete copies of all Parent Material Contracts, including all amendments
thereto. There are no Parent Material Contracts that are not in written form. As of the date of this Agreement, none of Parent, any of
its Subsidiaries or, to Parent’s Knowledge, any other party to a Parent Material Contract, has breached, violated or defaulted
under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of, or Laws applicable to, any
Parent Material Contract in such manner as would permit any other party to cancel or terminate any such Parent Material Contract, or
would permit any other party to seek damages or pursue other legal remedies which would reasonably be expected to be material to Parent
or its business or operations. As to Parent and its Subsidiaries, as of the date of this Agreement, each Parent Material Contract is
valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has
a right pursuant to the terms of any Parent Material Contract to change, any material amount paid or payable to Parent or any of its
Subsidiaries under any Parent Material Contract or any other material term or provision of any Parent Material Contract.
3.14
Compliance; Permits; Restrictions.
(a)
Parent and each of its Subsidiaries are, and since January 1, 2020, have been, in compliance in all material respects with all applicable
Laws, including the FDCA, the FDA regulations adopted thereunder, the Public Health Service Act and any other similar Law administered
or promulgated by the FDA or other Drug Regulatory Agency, except for any noncompliance, either individually or in the aggregate, which
would not be material to Parent. No investigation, claim, suit, proceeding, audit or other action by any Governmental Body is pending
or, to Parent’s Knowledge, threatened against Parent or any of its Subsidiaries. There is no agreement, judgment, injunction, order
or decree by or with a Drug Regulatory Agency binding upon Parent or any of its Subsidiaries which (i) has or would reasonably be expected
to have the effect of prohibiting or materially impairing any business practice of Parent or any of its Subsidiaries, any acquisition
of material property by Parent or any of its Subsidiaries or the conduct of business by Parent or any of its Subsidiaries as currently
conducted, (ii) is reasonably likely to have an adverse effect on Parent’s ability to comply with or perform any covenant or obligation
under this Agreement, or (iii) is reasonably likely to have the effect of preventing, delaying, making illegal or otherwise interfering
with the Contemplated Transactions.
(b)
Parent and its Subsidiaries hold all required Governmental Authorizations which are material to the operation of the business of Parent
and its Subsidiaries as currently conducted (the “Parent Permits”). Section 3.14(b) of the Parent Disclosure
Schedule identifies each Parent Permit. Parent and its Subsidiaries hold all right, title and interest in and to all Parent Permits free
and clear of any Encumbrance. Parent and each of its Subsidiaries are in material compliance with the terms of the Parent Permits. No
Legal Proceeding is pending or, to Parent’s Knowledge, threatened, which seeks to revoke, limit, suspend, or materially modify
any Parent Permit.
(c)
There are no proceedings pending or, to the Parent’s Knowledge, threatened with respect to an alleged material violation by Parent
or any of its Subsidiaries of the FDCA, FDA regulations adopted thereunder, the Controlled Substances Act, the Public Health Service
Act or any other similar Law administered or promulgated by any Drug Regulatory Agency.
(d)
Parent is not currently conducting or addressing, and to Parent’s Knowledge there is no basis to expect that it will be required
to conduct or address, any corrective actions, including, without limitation, product recalls or clinical holds.
(e)
All clinical, pre-clinical and other studies and tests conducted by or, to Parent’s Knowledge, on behalf of, or sponsored by, Parent
or any of its Subsidiaries, or in which Parent or any of its Subsidiaries or their respective current products or product candidates
have participated, were and, if still pending, are being conducted in all material respects in accordance with standard medical and scientific
research procedures and in compliance in all material respects with the applicable regulations of any applicable Drug Regulatory Agency
and other applicable Law, including 21 C.F.R. Parts 50, 54, 56, 58 and 312. Since January 1, 2020, neither Parent nor any of its Subsidiaries
have received any notices, correspondence, or other communications from any Drug Regulatory Agency requiring, or, to Parent’s Knowledge,
threatening to initiate, the termination or suspension of any clinical studies conducted by or on behalf of, or sponsored by, Parent
or any of its Subsidiaries or in which Parent or any of its Subsidiaries or their respective current products or product candidates have
participated.
(f)
Neither Parent nor any of its Subsidiaries are the subject of any pending or, to Parent’s Knowledge, threatened investigation in
respect of its business or products by the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal
Gratuities” Final Policy set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto. To Parent’s Knowledge,
neither Parent nor any of its Subsidiaries have committed any acts, made any statement, or failed to make any statement, in each case
in respect of its business or products that would violate the FDA’s “Fraud, Untrue Statements of Material Facts, Bribery,
and Illegal Gratuities” Final Policy, and any amendments thereto. None of Parent, any of its Subsidiaries or any of their respective
officers, employees or agents have been convicted of any crime or engaged in any conduct that could result in a debarment or exclusion
(i) under 21 U.S.C. Section 335a or (ii) any similar applicable Law. To Parent’s Knowledge, no debarment or exclusionary claims,
actions, proceedings or investigations in respect of their business or products are pending or threatened against Parent, any of its
Subsidiaries or any of their respective officers, employees or agents.
3.15
Legal Proceedings; Orders.
(a)
As of the date of this Agreement, there is no pending Legal Proceeding and, to Parent’s Knowledge, no Person has threatened in
writing to commence any Legal Proceeding: (i) that involves (A) Parent, (B) any of its Subsidiaries, (C) any Parent Associate (in his
or her capacity as such) or (D) any of the material assets owned or used by Parent or its Subsidiaries; or (ii) that challenges,
or that would reasonably be expected to have the effect of preventing, delaying, making illegal or otherwise interfering with, the Contemplated
Transactions.
(b)
Except as set forth in Section 3.15(b) of the Parent Disclosure Schedule, since January 1, 2020, no Legal Proceeding has been
pending against Parent or any of its Subsidiaries that resulted in material liability to Parent or any of its Subsidiaries.
(c)
There is no order, writ, injunction, judgment or decree to which Parent or any of its Subsidiaries, or any of the material assets owned
or used by Parent or any of its Subsidiaries, is subject. To Parent’s Knowledge, no officer or other employee of Parent or any
of its Subsidiaries is subject to any order, writ, injunction, judgment or decree that prohibits such officer or employee from engaging
in or continuing any conduct, activity or practice relating to the business of Parent or any of its Subsidiaries or to any material assets
owned or used by Parent or any of its Subsidiaries.
3.16
Tax Matters.
(a)
Parent and each of its Subsidiaries have timely filed all income Tax Returns and other material Tax Returns that they were required to
file under applicable Law. All such Tax Returns are correct and complete in all material respects and have been prepared in compliance
with all applicable Law. No written claim has ever been made by any Governmental Body in any jurisdiction where Parent or any of its
Subsidiaries does not file a particular Tax Return or pay a particular Tax that Parent or such Subsidiary is subject to taxation by that
jurisdiction.
(b)
All income and other material Taxes due and owing by Parent or any of its Subsidiaries (whether or not shown on any Tax Return) have
been fully paid. The unpaid Taxes of Parent and its Subsidiaries did not, as of the date of the Parent Balance Sheet, materially exceed
the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax
items) set forth on the face of the Parent Balance Sheet. Since the date of the Parent Balance Sheet, neither Parent nor any of its Subsidiaries
have incurred any material Liability for Taxes outside the Ordinary Course of Business.
(c)
All Taxes that Parent or any of its Subsidiaries are or were required by Law to withhold or collect have been duly and timely withheld
or collected in all material respects on behalf of its respective employees, independent contractors, stockholders, lenders, customers
or other third parties and, have been timely paid to the proper Governmental Body or other Person or properly set aside in accounts for
this purpose. The Parent and its Subsidiaries have complied in all material respects with applicable Laws relating to information reporting
and record retention (including to the extent necessary to claim any exemption from sales Tax collection and maintaining adequate and
current resale certificates to support any such claimed exemptions).
(d)
There are no Encumbrances for material Taxes (other than Taxes not yet due and payable) upon any of the assets of Parent or any of its
Subsidiaries.
(e)
No deficiencies for income or other material Taxes with respect to Parent or any of its Subsidiaries have been claimed, proposed or assessed
by any Governmental Body in writing. There are no pending or ongoing, and, to Parent’s Knowledge, threatened audits, assessments
or other actions for or relating to any liability in respect of a material amount of Taxes of Parent or any of its Subsidiaries. Neither
Parent nor any of its Subsidiaries (or any of their predecessors) has waived any statute of limitations in respect of any income or other
material Taxes or agreed to any extension of time with respect to any income or other material Tax assessment or deficiency.
(f)
Neither Parent nor any of its Subsidiaries have been a United States real property holding corporation within the meaning of Section
897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
(g)
Neither Parent nor any of its Subsidiaries are a party to any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement,
or similar agreement or arrangement, other than customary commercial contracts entered into in the Ordinary Course of Business the principal
subject matter of which is not Taxes.
(h)
Neither Parent nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of
deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date as a result of any: (i) change in
method of accounting for Tax purposes made on or prior to the Closing Date; (ii) use of an improper method of accounting for a Tax
period ending on or prior to the Closing Date; (iii) “closing agreement” as described in Section 7121 of the Code (or
any similar provision of state, local or foreign Law) executed on or prior to the Closing Date; (iv) intercompany transaction or
excess loss account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign
Law) entered into on or prior to the Closing Date; (v) installment sale or open transaction disposition made on or prior to the
Closing Date; (vi) prepaid amount received or deferred revenue accrued on or prior to the Closing Date; (vii) application of
Section 367(d) of the Code to any transfer of intangible property on or prior to the Closing Date; (viii) application of Sections
951 or 951A of the Code (or any similar provision of state, local or foreign Law) to any income received or accrued on or prior to the
Closing Date; or (ix) election under Section 108(i) of the Code (or any similar provision of state, local or foreign Law) made on
or prior to the Closing Date. Parent has not made any election under Section 965(h) of the Code.
(i)
Neither Parent nor any of its Subsidiaries have ever been (i) a member of a consolidated, combined or unitary Tax group (other than such
a group the common parent of which is Parent) or (ii) a party to any joint venture, partnership, or other arrangement that is treated
as a partnership for U.S. federal income Tax purposes. Neither Parent nor any of its Subsidiaries have any Liability for any material
amount of Taxes of any Person (other than Parent and any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar
provision of state, local, or foreign Law), by contract, as a transferee or successor, or otherwise.
(j)
Neither Parent nor any of its Subsidiaries (i) are a “controlled foreign corporation” as defined in Section 957 of the Code;
(ii) is a “passive foreign investment company” within the meaning of Section 1297 of the Code; or (iii) has ever had
a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise had an office or fixed place of business in a
country other than the country in which it is organized.
(k)
Neither Parent nor any of its Subsidiaries have participated in or been a party to a transaction that, as of the date of this Agreement,
constitutes a “reportable transaction” that is required to be reported to the IRS pursuant to Section 6011 of the Code and
applicable Treasury Regulations thereunder.
(l)
Neither Parent nor any of its Subsidiaries have taken any action, nor to Parent’s Knowledge is there any fact, that would reasonably
be expected to prevent the Merger from qualifying for the Intended Tax Treatment.
(m)
Neither Parent nor any of its Subsidiaries have availed itself of any Tax relief pursuant to any Pandemic Response Laws that could reasonably
be expected to materially impact the Tax payment and/or Tax reporting obligations of Parent and its Affiliates (including the Company
and its Subsidiaries) after the Closing Date.
For
purposes of this Section 3.16, each reference to Parent or any of its Subsidiaries shall be deemed to include any Person that
was liquidated into, merged with, or is otherwise a predecessor to, Parent of any of its Subsidiaries.
3.17
Employee and Labor Matters; Benefit Plans.
(a)
Section 3.17(a) of the Parent Disclosure Schedule lists, as of the date of this Agreement, all material Parent Benefit Plans.
“Parent Benefit Plan” means each (i) “employee benefit plan,” as defined in Section 3(3) of ERISA, whether
or not subject to ERISA, and (ii) any other pension, retirement, deferred compensation, excess benefit, profit-sharing, bonus, incentive,
equity or equity-based, phantom equity, employment (other than at-will employment offer letters on Parent’s standard form that
may be terminated without notice and with no penalty to Parent or any of its Subsidiaries and other than individual Parent Options, Parent
RSUs, or other compensatory equity award grants made pursuant to Parent’s standard forms, in which case only representative standard
forms of such agreements shall be scheduled), consulting, severance, change-of-control, stay or retention, medical, dental, vision, health,
prescription drug, life, disability, cafeteria plan, flexible spending account, employee assistance program, travel assistance, accidental
death & dismemberment, group insurance, retiree medical or life insurance, paid-time-off, holiday, welfare or fringe benefit plan,
program, agreement, contract, or arrangement (other than regular salary or wages) (whether written or unwritten, qualified or nonqualified,
funded or unfunded and including any that have been frozen), in each case, maintained, contributed to, or required to be contributed
to, by Parent or any of its Subsidiaries for the benefit of any current or former employee, director, officer, or independent contractor
of Parent or any of its Subsidiaries or under which Parent or any of its Subsidiaries have or could have any actual or contingent liability
(including, without limitation, as to the result of it being treated as a single employer under Section 414 of the Code with any other
person).
(b)
As applicable with respect to each material Parent Benefit Plan, Parent has made available to the Company, true and complete copies of
(i) each material Parent Benefit Plan, including all amendments thereto, and in the case of an unwritten material Parent Benefit Plan,
a written description thereof, (ii) all current trust documents, investment management contracts, custodial agreements, administrative
services agreements, insurance, and annuity contracts relating thereto, (iii) the current summary plan description and each summary of
material modifications thereto, (iv) the three most recently filed annual reports on Form 5500 and all schedules thereto, (v) the most
recent IRS determination or opinion letter, (vi) the three most recent nondiscrimination testing reports, actuarial reports, and financial
statements, (vii) all notices and filings concerning IRS, United States Department of Labor, or other Governmental Body audits or investigations
since January 1, 2020, (viii) each written report constituting a valuation of Parent’s capital stock for purposes of Sections 409A
or 422 of the Code, whether prepared internally by Parent or by an outside, third-party valuation firm, and (ix) all material written
materials provided to employees or participants relating to the amendment, termination, establishment, or increase or decrease in benefits
under any Parent Benefit Plan.
(c)
Each Parent Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and any
related documents or agreements and the applicable provisions of ERISA, the Code and all other applicable Laws.
(d)
The Parent Benefit Plans that are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and that are
intended to meet the qualification requirements of Section 401(a) of the Code have received determination or opinion letters from the
IRS on which they may currently rely to the effect that such plans are qualified under Section 401(a) of the Code and, to Parent’s
Knowledge, nothing has occurred that would reasonably be expected to materially adversely affect the qualification of such Parent Benefit
Plan.
(e)
None of Parent or any Parent ERISA Affiliate sponsors, maintains, contributes to, is required to contribute to, or has any actual or
contingent liability with respect to, or has within the past six (6) years sponsored, maintained, contributed to, or been required to
contribute to, (i) any “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) that is subject to Title
IV or Section 302 of ERISA or Section 412 of the Code, (ii) any “multiemployer plan” (within the meaning of Section 3(37)
of ERISA), (iii) any “multiple employer plan” (within the meaning of Section 413 of the Code), or (iv) any “multiple
employer welfare arrangement” (within the meaning of Section 3(40) of ERISA), and none of Parent or any Parent ERISA Affiliate
has, within the preceding six (6) years, incurred a complete or partial withdrawal from any “multiemployer plan” or otherwise
incurred any liability under Section 4202 of ERISA.
(f)
There are no pending audits or investigations by any Governmental Body involving any Parent Benefit Plan, and no pending or, to Parent’s
Knowledge, threatened claims (except for individual claims for benefits payable in the normal operation of the Parent Benefit Plans),
suits, or proceedings involving any Parent Benefit Plan. All contributions and premium payments required to have been made under any
of the Parent Benefit Plans or by applicable Law have been timely made, and neither Parent nor any of its Subsidiaries have any liability
for any unpaid contributions with respect to any Parent Benefit Plan (other than contributions that are accrued in the Ordinary Course
of Business).
(g)
Neither Parent nor any of its Subsidiaries, nor, to Parent’s Knowledge, any fiduciary, trustee, or administrator of any Parent
Benefit Plan, has engaged in, or in connection with the Contemplated Transactions will engage in, any transaction with respect to any
Parent Benefit Plan that would subject any such Parent Benefit Plan, Parent or any of its Subsidiaries or the Company to a Tax, penalty,
or liability for a “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code.
(h)
No Parent Benefit Plan provides (i) death, medical, dental, vision, life insurance or other welfare benefits beyond the termination of
service or retirement, other than coverage mandated by Law (including COBRA, for which the covered individual pays the full cost of coverage)
or (ii) death or retirement benefits under a Parent Benefit Plan qualified under Section 401(a) of the Code, and neither the Parent nor
any of its Subsidiaries have made a written or oral representation promising the same.
(i)
Except as set forth in Section 3.17(i) of the Parent Disclosure Schedules, neither the execution of this Agreement, nor the consummation
of the Contemplated Transactions will either alone or in connection with any other event(s) (i) result in any payment becoming due to
any current or former employee, director, officer, independent contractor or other service provider of Parent or any of its Subsidiaries,
(ii) increase any amount of compensation or benefits otherwise payable to any current or former employee, director, officer, independent
contractor or other service provider of Parent or any of its Subsidiaries, (iii) result in the acceleration of the time of payment, funding
or vesting of any benefits under any Parent Benefit Plan, (iv) require any contribution or payment to fund any obligation under any Parent
Benefit Plan or (v) limit the right to merge, amend or terminate any Parent Benefit Plan.
(j)
Neither the execution of this Agreement, nor the consummation of the Contemplated Transactions (either alone or when combined with the
occurrence of any other event, including without limitation, a termination of employment) will result in the receipt or retention by
any person who is a “disqualified individual” (within the meaning of Section 280G of the Code) with respect to Parent and
its Subsidiaries of any payment or benefit that is or could be characterized as a “parachute payment” (within the meaning
of Section 280G of the Code), determined without regard to the application of Section 280G(b)(5) of the Code.
(k)
Each Parent Benefit Plan providing for deferred compensation that constitutes a “nonqualified deferred compensation plan”
(as defined in Section 409A(d)(1) of the Code and the regulations promulgated thereunder) is, and has been, established, administered
and maintained in all material respects in compliance with the requirements of Section 409A of the Code and the regulations promulgated
thereunder.
(l)
No Person has any “gross-up” agreements with Parent or any of its Subsidiaries or other assurance of reimbursement or compensation
by Parent or any of its Subsidiaries for any Taxes imposed under Section 409A or Section 4999 of the Code.
(m)
Parent does not have any Parent Benefit Plan that is maintained for service providers located outside of the United States.
(n)
Neither Parent nor any of its Subsidiaries are a party to, bound by, or has a duty to bargain under, any collective bargaining agreement
or other Contract with a labor union or labor organization representing any of its employees, and there is no labor union or labor organization
representing or, to Parent’s Knowledge, purporting to represent or seeking to represent any employees of Parent or its Subsidiaries,
including through the filing of a petition for representation election.
(o)
Parent and each of its Subsidiaries is, and since January 1, 2020, has been, in material compliance with all applicable Laws respecting
labor, employment, employment practices, and terms and conditions of employment, including, without limitation, worker classification,
discrimination, wrongful termination, harassment and retaliation, equal employment opportunities, fair employment practices, meal and
rest periods, immigration, employee safety and health, wages (including overtime wages), unemployment and workers’ compensation,
leaves of absence, and hours of work. Except as would not be reasonably likely to result in a material liability to Parent or any of
its Subsidiaries, with respect to employees of Parent or any of its Subsidiaries, each of Parent and its Subsidiaries, since January
1, 2020: (i) has withheld and reported all amounts required by Law or by agreement to be withheld and reported with respect to wages,
salaries and other payments, benefits, or compensation to employees, (ii) is not liable for any arrears of wages (including overtime
wages), severance pay or any Taxes or penalties for failure to comply with any of the foregoing in any material respect, and (iii) is
not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Body, with respect
to unemployment compensation benefits, disability, social security or other benefits or obligations for employees (other than routine
payments to be made in the Ordinary Course of Business or as required by Law). There are no actions, suits, claims, charges, demands,
lawsuits, investigations, audits or administrative matters pending or, to Parent’s Knowledge, threatened or reasonably anticipated
against Parent or any of its Subsidiaries relating to any current or former employee, applicant for employment, consultant, employment
agreement or Parent Benefit Plan (other than routine claims for benefits). All employees of Parent and its Subsidiaries are employed
“at-will” and their employment can be terminated without advance notice or payment of severance.
(p)
Except as would not be reasonably likely to result in a material liability to Parent or any of its Subsidiaries, with respect to each
individual who currently renders services to Parent or any of its Subsidiaries, Parent and each of its Subsidiaries have accurately classified
each such individual as an employee, independent contractor, or otherwise under all applicable Laws and, for each individual classified
as an employee, Parent and each of its Subsidiaries have accurately classified him or her as overtime eligible or overtime ineligible
under all applicable Laws. Neither Parent nor any of its Subsidiaries have any material liability with respect to any misclassification
of: (a) any Person as an independent contractor rather than as an employee, (b) any employee leased from another employer, or (c) any
employee currently or formerly classified as exempt from overtime wages.
(q)
There is not and has not been since January 1, 2020, nor is there or has there been since January 1, 2020, any threat of, any strike,
slowdown, work stoppage, lockout, union election petition, demand for recognition, or any similar activity or dispute, or, to Parent’s
Knowledge, any union organizing activity, against Parent or any of its Subsidiaries. No event has occurred, and, to Parent’s Knowledge,
no condition or circumstance exists, that might directly or indirectly give rise to or provide a basis for the commencement of any such
strike, slowdown, work stoppage, lockout, union election petition, demand for recognition, or any similar activity or dispute.
3.18
Environmental Matters. Parent and each of its Subsidiaries are in compliance, and since January 1, 2020, have complied, with all
applicable Environmental Laws, which compliance includes the possession by Parent and its Subsidiaries of all permits and other Governmental
Authorizations required under applicable Environmental Laws and compliance with the terms and conditions thereof, except for any failure
to be in such compliance that, either individually or in the aggregate, would not reasonably be expected to result in a Parent Material
Adverse Effect. Neither Parent nor any of its Subsidiaries have received since January 1, 2020, any written notice or other communication
(in writing or otherwise), whether from a Governmental Body or other Person, that alleges that Parent or any of its Subsidiaries are
not in compliance with or has liability pursuant to any Environmental Law and, to Parent’s Knowledge, there are no circumstances
that would reasonably be expected to prevent or interfere with Parent’s or any of its Subsidiaries’ compliance with any Environmental
Law in the future, except where such failure to comply would not reasonably be expected to have a Parent Material Adverse Effect. To
the Parent’s Knowledge, no current or (during the time a prior property was leased or controlled by Parent or any of its Subsidiaries)
prior property leased or controlled by Parent or any of its Subsidiaries have had a release of or exposure to Hazardous Materials in
material violation of or as would reasonably be expected to result in any material liability of Parent or any of its Subsidiaries pursuant
to Environmental Law. No consent, approval or Governmental Authorization of or registration or filing with any Governmental Body is required
by Environmental Laws in connection with the execution and delivery of this Agreement or the consummation of the Contemplated Transactions.
Prior to the date of this Agreement, Parent has provided or otherwise made available to the Company true and correct copies of all material
environmental reports, assessments, studies and audits in the possession or control of Parent or any of its Subsidiaries with respect
to any property leased or controlled by Parent or any of its Subsidiaries or any business operated by them.
3.19
Transactions with Affiliates. Except as set forth in the Parent SEC Documents filed prior to the date of this Agreement, since
the date of Parent’s proxy statement filed in 2022 with the SEC, no event has occurred that would be required to be reported by
Parent pursuant to Item 404 of Regulation S-K as promulgated under the Securities Act.
3.20
Insurance. Parent has delivered or made available to the Company accurate and complete copies of all material insurance policies
and all material self-insurance programs and arrangements relating to the business, assets, liabilities and operations of Parent and
each of its Subsidiaries, as of the date of this Agreement. Each of such insurance policies is in full force and effect and Parent and
each of its Subsidiaries are in compliance in all material respects with the terms thereof. Other than customary end-of-policy notifications
from insurance carriers, since January 1, 2020, neither Parent nor any of its Subsidiaries have received any notice or other communication
regarding any actual or possible: (i) cancellation or invalidation of any insurance policy; or (ii) refusal or denial of any coverage,
reservation of rights or rejection of any material claim under any insurance policy. Parent and each of its Subsidiaries have provided
timely written notice to the appropriate insurance carrier(s) of each Legal Proceeding that is currently pending against Parent or any
of its Subsidiaries for which Parent or such Subsidiary has insurance coverage, and no such carrier has issued a denial of coverage or
a reservation of rights with respect to any such Legal Proceeding, or informed Parent or any of its Subsidiaries of its intent to do
so.
3.21
No Financial Advisors. Except as set forth in Section 3.21 of the Parent Disclosure Schedule, no broker, finder or investment
banker is entitled to any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee or other fee or commission in
connection with the Contemplated Transactions based upon arrangements made by or on behalf of Parent or any of its Subsidiaries.
3.22
Disclosure. The information supplied by or on behalf of Parent and each of its Subsidiaries for inclusion or incorporation by
reference in the Registration Statement, or to be included or supplied by or on behalf of Parent and each of its Subsidiaries for inclusion
in any Regulation M-A Filing, shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC,
at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC, as applicable,
contain any statement that, at such time and in light of the circumstances under which it shall be made, is false or misleading with
respect to any material fact, or omit to state any material fact necessary in order to make the statements therein not false or misleading,
or omit to state any material fact necessary to correct any statement therein that has become false or misleading. The information supplied
by or on behalf of Parent and each of its Subsidiaries for inclusion or incorporation by reference in the Proxy Statement, which information
shall be deemed to include all information about or related to Parent and each of its Subsidiaries, the Parent Stockholder Matters and
the Parent Stockholder Meeting, shall not, on the date the Proxy Statement is first mailed to Parent’s stockholders, or at the
time of the Parent Stockholders’ Meeting or as of the Effective Time, contain any statement that, at such time and in light of
the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material
fact necessary in order to make the statements made in the Proxy Statement not false or misleading, or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Parent Stockholders’
Meeting that has become false or misleading.
3.23 Anti-Bribery.
None of Parent, any of its Subsidiaries or any of their respective directors, officers, employees or, to Parent’s Knowledge,
agents or any other Person acting on their behalf has directly or indirectly made any bribes, rebates, payoffs, influence payments,
kickbacks, illegal payments, illegal political contributions, or other payments, in the form of cash, gifts, or otherwise, or taken
any other action, in violation of Anti-Bribery Laws. Neither Parent nor any of its Subsidiaries are or has been the subject of any
investigation or inquiry by any Governmental Body with respect to potential violations of Anti-Bribery Laws.
3.24
Valid Issuance. The Parent Common Stock to be issued in the Merger will, when issued in accordance with the provisions of this
Agreement, be validly issued, fully paid and nonassessable.
3.25
Disclaimer of Other Representations or Warranties. Except as previously set forth in this Section 3 or in any certificate
delivered by Parent or Merger Sub to the Company pursuant to this Agreement, neither Parent nor Merger Sub makes any representation or
warranty, express or implied, at law or in equity, with respect to it or any of its assets, liabilities, or operations, and any such
other representations or warranties are hereby expressly disclaimed.
SECTION
4. CERTAIN COVENANTS OF THE PARTIES
4.1
Operation of Parent’s Business.
(a)
Except (i) as set forth in Section 4.1(a) of the Parent Disclosure Schedule, (ii) as expressly permitted by or required in accordance
with this Agreement, including in connection with the Asset Dispositions pursuant to Section 4.7, (iii) as required by applicable
Law or (iv) as may be consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned),
during the period commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement
pursuant to Section 9 and the Effective Time (the “Pre-Closing Period”): each of Parent and its Subsidiaries
shall (A) conduct its business and operations in the Ordinary Course of Business and in compliance in all material respects with all
applicable Laws and the requirements of all Contracts that constitute Parent Material Contracts and (B) continue to pay material outstanding
accounts payable and other material current Liabilities (including payroll) when due and payable.
(b)
Except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 4.1(b) of the Parent Disclosure Schedule, (iii)
as required by applicable Law, (iv) in connection with the Asset Dispositions pursuant to Section 4.7 or the winding down of Parent’s
prior research and development activities (including the termination of ongoing contractual obligations related to Parent’s current
products or product candidates), or (v) with the prior written consent of the Company (which consent shall not be unreasonably withheld,
delayed or conditioned), at all times during the Pre-Closing Period, Parent shall not, nor shall it cause or permit any of its Subsidiaries
to, do any of the following:
(i)
declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock or repurchase,
redeem or otherwise reacquire any shares of its capital stock or other securities (except repurchases of shares of Parent Common Stock
from terminated employees, directors or consultants of Parent or in connection with the payment of the exercise price and/or withholding
Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Parent Incentive Plan in accordance
with the terms of such award in effect on the date of this Agreement);
(ii)
sell, issue, grant, pledge or otherwise dispose of or encumber or authorize any of the foregoing with respect to: (A) any capital stock
or other security of Parent or any of its Subsidiaries (except for shares of Parent Common Stock issued upon the valid exercise of outstanding
Parent Options or Parent Warrants or upon settlement of Parent RSUs); (B) any option, warrant or right to acquire any capital stock
or any other security, other than Parent Options or Parent RSUs granted to directors, employees and service providers in the Ordinary
Course of Business which are included in the calculation of the Parent Outstanding Shares; or (C) any instrument convertible into
or exchangeable for any capital stock or other security of Parent or any of its Subsidiaries;
(iii)
except as required to give effect to anything in contemplation of the Closing, amend any of its or its Subsidiaries’ Organizational
Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification
of shares, stock split, reverse stock split or similar transaction except, for the avoidance of doubt, the Contemplated Transactions;
(iv)
form any Subsidiary or acquire any equity interest or other interest in any other Entity or enter into a joint venture with any other
Entity;
(v)
(A) lend money to any Person (except for the advancement of reasonable and customary expenses to employees, directors and consultants
in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of
others, (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of $100,000 of the budgeted
capital expenditure amounts set forth in Parent’s operating budget delivered to the Company concurrently with the execution of
this Agreement (the “Parent Budget”) or (E) forgive any loans to any Persons, including Parent’s employees,
officers, directors or Affiliates;
(vi)
other than as required by applicable Law or the terms of any Parent Benefit Plan as in effect on the date of this Agreement: (A) adopt,
terminate, establish or enter into any Parent Benefit Plan; (B) cause or permit any Parent Benefit Plan to be amended; (C)
pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits
or bonus or other compensation or remuneration payable to, any of its directors, officers, consultants or employees, other than increases
in base salary and annual cash bonus opportunities and payments made, in each case, in the Ordinary Course of Business; (D) hire
any officer or employee; or (E) increase the severance or change of control benefits offered to any current or new employees, directors
or consultants;
(vii)
recognize any labor union or labor organization, except as otherwise required by applicable Law and after prior written consent of the
Company (which consent shall not be unreasonably withheld, delayed or conditioned);
(viii)
enter into any material transaction other than in the Ordinary Course of Business;
(ix)
acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its assets or properties, or grant any Encumbrance
with respect to such assets or properties, except in the Ordinary Course of Business;
(x)
sell, assign, transfer, license, sublicense or otherwise dispose of any material Parent IP (other than pursuant to non-exclusive licenses
in the Ordinary Course of Business);
(xi)
make, change or revoke any material Tax election, file any amendment making any material change to any Tax Return, settle or compromise
any income or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification
or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business
the principal subject matter of which is not Taxes), request or consent to any extension or waiver of any limitation period with respect
to any claim or assessment for any income or other material Taxes (other than pursuant to an extension of time to file any Tax Return
granted in the Ordinary Course of Business of not more than seven (7) months), or adopt or change any material accounting method in respect
of Taxes;
(xii)
enter into, materially amend or terminate any Parent Material Contract;
(xiii)
except as otherwise set forth in the Parent Budget and the incurrence or payment of any Transaction Expenses, make any expenditures,
incur any Liabilities or discharge or satisfy any Liabilities, in each case, in amounts that exceed the aggregate amount of the Parent
Budget by $100,000;
(xiv)
other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xv)
initiate or settle any Legal Proceeding or other claim or dispute involving or against Parent or any Subsidiary of Parent;
(xvi)
enter into or amend a Parent Material Contract that would reasonably be expected to prevent or materially impede, interfere with, hinder
or delay the consummation of the Contemplated Transactions; or
(xvii)
agree, resolve or commit to do any of the foregoing.
(c)
Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of
Parent prior to the Effective Time. Prior to the Effective Time, Parent shall exercise, consistent with the terms and conditions of this
Agreement, complete unilateral control and supervision over its business operations.
4.2
Operation of the Company’s Business.
(a)
Except (i) as set forth in Section 4.2(a) of the Company Disclosure Schedule, (ii) as expressly permitted by or required in accordance
with this Agreement, (iii) as required by applicable Law, or (iv) as may be consented to in writing by Parent (which consent shall not
be unreasonably withheld, delayed or conditioned), during the Pre-Closing Period: each of the Company and its Subsidiaries shall (A)
conduct its business and operations in the Ordinary Course of Business and in compliance in all material respects with all applicable
Laws and the requirements of all Contracts that constitute Company Material Contracts and (B) continue to pay material outstanding accounts
payable and other material current Liabilities (including payroll) when due and payable.
(b)
Except (i) as expressly permitted by this Agreement, (ii) as set forth in Section 4.2(b) of the Company Disclosure Schedule, (iii)
as required by applicable Law or (iv) with the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed
or conditioned), at all times during the Pre-Closing Period, the Company shall not, nor shall it cause or permit any of its Subsidiaries
to, do any of the following:
(i)
declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of its capital stock or repurchase,
redeem or otherwise reacquire any shares of its capital stock or other securities (except repurchases of shares of Company Common Stock
from terminated employees, directors or consultants of Company or in connection with the payment of the exercise price and/or withholding
Taxes incurred upon the exercise, settlement or vesting of any award or purchase rights granted under the Company Incentive Plan in accordance
with the terms of such award in effect on the date of this Agreement);
(ii)
sell, issue, grant, pledge or otherwise dispose of or encumber or authorize any of the foregoing with respect to: (A) any capital stock
or other security of the Company or any of its Subsidiaries (except for shares of Company Common Stock issued upon the valid exercise
of outstanding Company Options or Company Warrants); (B) any option, warrant or right to acquire any capital stock or any other
security, other than Company options or restricted stock unit awards granted to directors, employees and service providers in the Ordinary
Course of Business which are included in the calculation of the Company Outstanding Shares; or (C) any instrument convertible into
or exchangeable for any capital stock or other security of the Company or any of its Subsidiaries;
(iii)
except as required to give effect to anything in contemplation of the Closing, amend any of its or its Subsidiaries’ Organizational
Documents, or effect or be a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification
of shares, stock split, reverse stock split or similar transaction except, for the avoidance of doubt, the Contemplated Transactions;
(iv)
form any Subsidiary or acquire any equity interest or other interest in any other Entity or enter into a joint venture with any other
Entity;
(v)
(A) lend money to any Person (except for the advancement of reasonable and customary expenses to employees, directors and consultants
in the Ordinary Course of Business), (B) incur or guarantee any indebtedness for borrowed money, (C) guarantee any debt securities of
others, (D) other than the incurrence or payment of Transaction Expenses, make any capital expenditure in excess of $100,000 of the budgeted
capital expenditure amounts set forth in the Company operating budget delivered to Parent concurrently with the execution of this Agreement
(the “Company Budget”) or (E) forgive any loans to any Persons, including the Company’s employees, officers,
directors or Affiliates;
(vi)
other than as required by applicable Law or the terms of any Company Benefit Plan as in effect on the date of this Agreement: (A) adopt,
terminate, establish or enter into any Company Benefit Plan; (B) cause or permit any Company Benefit Plan to be amended; (C)
pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits
or bonus or other compensation or remuneration payable to, any of its directors, officers, consultants or employees, other than increases
in base salary and annual cash bonus opportunities and payments made, in each case, in the Ordinary Course of Business; (D) increase
the severance or change of control benefits offered to any current or new employees, directors or consultants; or (E) terminate
or give notice to any officer other than for cause;
(vii)
recognize any labor union or labor organization, except as otherwise required by applicable Law and after prior written consent of Parent
(which consent shall not be unreasonably withheld, delayed or conditioned);
(viii)
enter into any material transaction other than in the Ordinary Course of Business;
(ix)
acquire any material asset or sell, lease or otherwise irrevocably dispose of any of its assets or properties, or grant any Encumbrance
with respect to such assets or properties, except in the Ordinary Course of Business;
(x)
sell, assign, transfer, license, sublicense or otherwise dispose of any Company IP (other than pursuant to non-exclusive licenses in
the Ordinary Course of Business);
(xi)
make, change or revoke any material Tax election, file any amendment making any material change to any Tax Return, settle or compromise
any income or other material Tax liability or submit any voluntary disclosure application, enter into any Tax allocation, sharing, indemnification
or other similar agreement or arrangement (other than customary commercial contracts entered into in the Ordinary Course of Business
the principal subject matter of which is not Taxes), request or consent to any extension or waiver of any limitation period with respect
to any claim or assessment for any income or other material Taxes (other than pursuant to an extension of time to file any Tax Return
granted in the Ordinary Course of Business of not more than seven (7) months), or adopt or change any material accounting method in respect
of Taxes;
(xii)
enter into, materially amend or terminate any Company Material Contract (other than statements of work entered into or amended in the
Ordinary Course of Business);
(xiii)
except as otherwise set forth in the Company Budget and the incurrence or payment of any Transaction Expenses, make any expenditures,
incur any Liabilities or discharge or satisfy any Liabilities, in each case, in amounts that exceed the aggregate amount of the Company
Budget by $150,000;
(xiv)
other than as required by Law or GAAP, take any action to change accounting policies or procedures;
(xv)
initiate or settle any Legal Proceeding or other claim or dispute involving or against the Company or any Subsidiary of the Company;
or
(xvi)
enter into or amend a Contract that would reasonably be expected to prevent or materially impede, interfere with, hinder or delay the
consummation of the Contemplated Transactions; or
(xvii)
agree, resolve or commit to do any of the foregoing.
(c)
Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the operations of the Company
prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this
Agreement, complete unilateral control and supervision over its business operations.
4.3
Access and Investigation. Subject to the terms of the Confidentiality Agreement, which the Parties agree will continue in full
force following the date of this Agreement, during the Pre-Closing Period, upon reasonable notice, Parent, on the one hand, and the Company,
on the other hand, shall and shall use commercially reasonable efforts to cause such Party’s Representatives to: (a) provide the
other Party and such other Party’s Representatives with reasonable access during normal business hours to such Party’s Representatives,
personnel, property and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating
to such Party and its Subsidiaries; (b) provide the other Party and such other Party’s Representatives with such copies of
the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its
Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries
as the other Party may reasonably request; (c) permit the other Party’s officers and other employees to meet, upon reasonable
notice and during normal business hours, with the chief financial officer and other officers and managers of such Party responsible for
such Party’s financial statements and the internal controls of such Party to discuss such matters as the other Party may reasonably
deem necessary or appropriate; and (d) make available to the other Party copies of unaudited financial statements, material operating
and financial reports prepared for senior management or the board of directors of such Party, and any material notice, report or other
document filed with or sent to or received from any Governmental Body in connection with the Contemplated Transactions. Any investigation
conducted by either Parent or the Company pursuant to this Section 4.3 shall be conducted in such manner as not to interfere unreasonably
with the conduct of the business of the other Party.
Notwithstanding
the foregoing, any Party may restrict the foregoing access to the extent that any Law, and, with respect to the Company, any contract
listed in Section 4.3 of the Company Disclosure Schedule, applicable to such Party requires such Party to restrict or prohibit
access to any such properties or information or may redact any of the foregoing documents or reports to the extent necessary to preserve
the attorney-client privilege under any circumstances in which such privilege may be jeopardized by the disclosure of such document or
report.
4.4
Parent Non-Solicitation.
(a)
Parent agrees that, during the Pre-Closing Period, neither it nor any of its Subsidiaries shall, nor shall it or any of its Subsidiaries
authorize any of their respective Representatives to, directly or indirectly, other than relating to communicating, discussing, negotiating
or consummating the Asset Dispositions: (i) solicit, initiate or knowingly encourage, induce or facilitate the communication, making,
submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to
lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding Parent or any of its Subsidiaries
to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions (other
than to inform any Person of the existence of the provisions in this Section 4.4) or negotiations with any Person with respect
to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal (subject to Section
5.3); (v) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition
Transaction (other than a confidentiality agreement permitted under this Section 4.4(a)); or (vi) publicly propose to do
any of the foregoing; provided, however, that, notwithstanding anything contained in this Section 4.4 and subject
to compliance with this Section 4.4, prior to obtaining the Required Parent Stockholder Vote, Parent and its Subsidiaries may
furnish non-public information regarding Parent or any of its Subsidiaries to, and enter into discussions or negotiations with, any Person
in response to a bona fide Acquisition Proposal by such Person, which the Parent Board determines in good faith, after consultation
with Parent’s outside financial advisors and outside legal counsel, constitutes, or is reasonably likely to result in, a Superior
Offer (and is not withdrawn) if: (A) none of Parent, any of its Subsidiaries or any of their respective Representatives shall have breached
this Section 4.4 in any material respect; (B) the Parent Board concludes in good faith based on the advice of outside legal
counsel, that the failure to take such action is reasonably likely to be inconsistent with the fiduciary duties of the Parent Board under
applicable Law; (C) substantially contemporaneously with furnishing any such non-public information to such Person, Parent gives
the Company notice of Parent’s intention to furnish nonpublic information to, or enter into discussions with, such Person and furnishes
such non-public information to the Company (to the extent such information has not been previously furnished by Parent to the Company);
and (D) Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions,
use restrictions, non-solicitation provisions, no hire and “standstill” provisions), in the aggregate, at least as favorable
to Parent as those contained in the Confidentiality Agreement. Without limiting the generality of the foregoing, Parent acknowledges
and agrees that, in the event any Representative of Parent or any of its Subsidiaries (whether or not such Representative is purporting
to act on behalf of Parent or any of its Subsidiaries) takes any action that, if taken by Parent or any of its Subsidiaries, would constitute
a breach of this Section 4.4, the taking of such action by such Representative shall be deemed to constitute a breach of this
Section 4.4 by Parent for purposes of this Agreement.
(b)
If Parent, any of its Subsidiaries or any of their respective Representatives receives an Acquisition Proposal or Acquisition Inquiry
at any time during the Pre-Closing Period, then Parent shall promptly (and in no event later than one (1) Business Day after Parent becomes
aware of such Acquisition Proposal or Acquisition Inquiry) advise the Company orally and in writing of such Acquisition Proposal or Acquisition
Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the material
terms thereof). Parent shall keep the Company reasonably informed with respect to the status and material terms of any such Acquisition
Proposal or Acquisition Inquiry and any material modification or proposed material modification thereto.
(c)
Parent shall immediately cease and cause to be terminated any existing discussions, negotiations and communications with any Person that
relate to any Acquisition Proposal or Acquisition Inquiry (other than any Asset Disposition) that has not already been terminated as
of the date of this Agreement and request the destruction or return of any non-public information of Parent or any of its Subsidiaries
provided to such Person as soon as practicable after the date of this Agreement.
4.5
Company Non-Solicitation.
(a)
The Company agrees that, during the Pre-Closing Period, neither it nor any of its Subsidiaries shall, nor shall it or any of its Subsidiaries
authorize any of their respective Representatives to, directly or indirectly: (i) solicit, initiate or knowingly encourage, induce or
facilitate the communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or take any action
that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information
regarding the Company or any of its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or Acquisition
Inquiry; (iii) engage in discussions (other than to inform any Person of the existence of the provisions in this Section 4.5)
or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend
any Acquisition Proposal; (v) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to
any Acquisition Transaction; or (vi) publicly propose to do any of the foregoing. Without limiting the generality of the
foregoing, the Company acknowledges and agrees that, in the event any Representative of the Company or any of its Subsidiaries (whether
or not such Representative is purporting to act on behalf of the Company or any of its Subsidiaries) takes any action that, if taken
by the Company, would constitute a breach of this Section 4.5, the taking of such action by such Representative shall be deemed
to constitute a breach of this Section 4.5 by the Company for purposes of this Agreement.
(b)
If the Company, any of its Subsidiaries or any of their respective Representatives receives an Acquisition Proposal or Acquisition Inquiry
at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than one (1) Business Day after the
Company becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal
or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and
the material terms thereof). The Company shall keep Parent reasonably informed with respect to the status and material terms of any such
Acquisition Proposal or Acquisition Inquiry and any material modification or proposed material modification thereto.
(c)
The Company shall immediately cease and cause to be terminated any existing discussions, negotiations and communications with any Person
that relate to any Acquisition Proposal or Acquisition Inquiry that has not already been terminated as of the date of this Agreement
and request the destruction or return of any non-public information of the Company or any of its Subsidiaries provided to such Person
as soon as practicable after the date of this Agreement.
4.6
Notification of Certain Matters.
(a)
During the Pre-Closing Period, the Company shall promptly (and in no event later than one (1) Business Day after the Company becomes
aware of the same) notify Parent (and, if in writing, furnish copies of any relevant documents) if any of the following occurs: (i) any
notice or other communication is received from any Person alleging that the Consent of such Person is or may be required in connection
with any of the Contemplated Transactions; (ii) any Legal Proceeding against or involving or otherwise affecting the Company or
its Subsidiaries are commenced, or, to the Company’s Knowledge, threatened against the Company or its Subsidiaries or, to the Company’s
Knowledge, any director or officer of the Company or its Subsidiaries; (iii) the Company becomes aware of any inaccuracy in any
representation or warranty made by it in this Agreement; or (iv) the failure of the Company to comply with any covenant or obligation
of the Company; in each case that could reasonably be expected to make the timely satisfaction of any of the conditions set forth
in Sections 6 or 7, as applicable, impossible or materially less likely. No notification given to Parent pursuant to this
Section 4.6(a) shall change, limit or otherwise affect any of the representations, warranties, covenants or obligations of the
Company or any of its Subsidiaries contained in this Agreement or the Company Disclosure Schedule for purposes of Sections 6 and
7, as applicable.
(b)
During the Pre-Closing Period, Parent shall promptly (and in no event later than one (1) Business Day after Parent becomes aware of the
same) notify the Company (and, if in writing, furnish copies of any relevant documents) if any of the following occurs: (i) any notice
or other communication is received from any Person alleging that the Consent of such Person is or may be required in connection with
any of the Contemplated Transactions; (ii) any Legal Proceeding against or involving or otherwise affecting Parent or any of its
Subsidiaries are commenced, or, to Parent’s Knowledge, threatened against Parent or any of its Subsidiaries or, to Parent’s
Knowledge, any director or officer of Parent or any of its Subsidiaries; (iii) Parent becomes aware of any inaccuracy in any representation
or warranty made by it in this Agreement; or (iv) the failure of Parent to comply with any covenant or obligation of Parent or Merger
Sub; in each case that could reasonably be expected to make the timely satisfaction of any of the conditions set forth in Sections
6 or 8, as applicable, impossible or materially less likely. No notification given to the Company pursuant to this Section
4.6(b) shall change, limit or otherwise affect any of the representations, warranties, covenants or obligations of Parent or any
of its Subsidiaries contained in this Agreement or the Parent Disclosure Schedule for purposes of Sections 6 and 8, as
applicable.
4.7
Potentially Transferable Assets. Parent shall be entitled, but under no obligation, to sell, transfer, license, assign,
dividend, spin-off, reclassification, corporate rearrangement, scheme of arrangement or otherwise divest the Potentially Transferable
Assets to one or more third parties in one or a series of transactions prior to or substantially concurrently with the Closing (each
an “Asset Disposition” and collectively, the “Asset Dispositions”); provided, that
any such Asset Disposition shall require, to the extent consistent with applicable Laws, the written consent of the Company, not to be
unreasonably withheld, conditioned or delayed, if such Asset Disposition would create any post-disposition material Liabilities for Parent
following the Closing. Each Party acknowledges that Parent may not be successful in completing, or may determine not to proceed with,
any Asset Dispositions. For clarity, if the Asset Dispositions are not completed prior to, concurrently with, or immediately following
the Closing, the Potentially Transferable Assets shall be retained by Parent.
4.8
Parent Legacy Note. Prior to the Closing, any Parent IP and other assets and technology of Parent that remain after the Asset
Disposition other than the Parent Excluded Assets (“Parent Legacy Assets”) shall be sold, transferred, licensed, assigned,
or conveyed into a newly formed Subsidiary of Parent (“Newco”). In consideration of the transfer of such assets, Newco
shall assume (i) the Parent Legacy Note, which will be secured by the Parent Legacy Assets and (ii) all other Liabilities of Parent in
existence as of the Effective Time (for the avoidance of doubt, such Liabilities shall not include Transaction Expenses).
4.9
Post-Merger Warrant. Prior to the Closing, Parent shall issue to the holders of shares of Parent Common Stock three Post-Merger
Warrants for each five shares of Parent Common Stock held by such holder. Each Post-Merger Warrant shall have the terms set forth in
a warrant agreement to be entered into by Parent and a warrant agent (the “Warrant Agreement”). The Warrant Agreement
will be on terms reasonably satisfactory to the Company. The parties agree that the Warrant Agreements shall not be assignable or transferable
(except in the case of the death of a natural person) and shall not be listed on any securities exchange.
4.10
Sarbanes-Oxley Certification. The principal executive officer and the principal financial officer of Parent shall have provided,
with regard to any SEC Document file (or to be filed) with the SEC on or after the date of this Agreement, any required certification
in the form required under Rule 13a-14 under the Exchange Act and 18 U.S.C. 1350.
4.11
Parent Preferred Stock. Subject to requisite Parent stockholder approval and in accordance with the Side Letter, Juvenescence
Limited, a company incorporated under the Isle of Man (“Juvenescence”) will convert all of the Parent Preferred Stock
owned by Juvenescence, or an Affiliate thereof, into Parent Common Stock prior to the NYSE Reverse Split.
4.12
Company Notes. Any Company Note issued to Parent shall be amended prior to Closing so they automatically convert immediately prior
to the Merger into shares of Company Capital Stock (which for the avoidance of doubt, such shares of Company Capital Stock will be treated
as set forth in Section 1.5(a)(i)).
4.13
Company Incentive Plan and Parent Incentive Plan. The Company agrees to cause the Amended and Restated Company Incentive Plan,
attached hereto as Exhibit I, to become effective prior to the Effective Time. Parent agrees to cause the Amended and Restated
Parent Incentive Plan, attached hereto as Exhibit J, to become effective prior to the Effective Time. The Parties agree
that such amendment and restatement shall not require stockholder approval of either the Company or the Parent.
SECTION
5. ADDITIONAL AGREEMENTS OF THE PARTIES
5.1
Registration Statement; Proxy Statement.
(a)
As promptly as practicable after the date of this Agreement, and in no event more than sixty (60) days following the date of this Agreement
unless agreed to in writing by the Parties, the Parties shall prepare, and Parent shall cause to be filed with the SEC, the Registration
Statement, in which the Proxy Statement will be included as a prospectus. Parent covenants and agrees that the Registration Statement
(and the letter to Parent’s stockholders, a notice of meeting and form of proxy included therewith) will not, at the time that
the Proxy Statement or any amendments or supplements thereto are filed with the SEC or are first mailed to Parent’s stockholders,
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Company covenants
and agrees that the information provided by or on behalf of the Company or its Subsidiaries or their respective Representatives to Parent
for inclusion in the Registration Statement (including the Company’s audited consolidated financial statements for the fiscal years
ended 2022 and 2021, or the Company Interim Financial Statements, as the case may be) will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary in order to make such information not misleading.
Notwithstanding the foregoing, Parent makes no covenant, representation or warranty with respect to statements made in the Registration
Statement (and the letter to Parent’s stockholders, notice of meeting and form of proxy included therewith), if any, based on information
provided by or on behalf of the Company or any of its Representatives for inclusion therein, and the Company makes no covenant, representation
or warranty with respect to statements made in the Registration Statement (and the letter to Parent’s stockholders, notice of meeting
and form of proxy included therewith), if any, other than with respect to the information provided by or on behalf of the Company, any
of its Subsidiaries or any of their respective Representatives for inclusion therein. The Company and its legal counsel shall be given
a reasonable opportunity to review and comment on the Registration Statement, including all amendments and supplements thereto, prior
to the filing thereof with the SEC, and on the response to any comments of the SEC on the Registration Statement, prior to the filing
thereof with the SEC. Parent shall use commercially reasonable efforts to cause the Registration Statement and the Proxy Statement to
comply with the applicable rules and regulations promulgated by the SEC, to respond promptly to any comments of the SEC or its staff
and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after it is filed with
the SEC. Each of the Parties shall use commercially reasonable efforts to cause the Proxy Statement to be mailed to Parent’s stockholders
as promptly as practicable after the Registration Statement is declared effective under the Securities Act. Each Party shall promptly
furnish to the other Party all information concerning such Party and such Party’s Affiliates and such Party’s stockholders
that may be required or reasonably requested in connection with any action contemplated by this Section 5.1. If Parent, Merger
Sub or the Company becomes aware of any event or information that, pursuant to the Securities Act or the Exchange Act, should be disclosed
in an amendment or supplement to the Registration Statement or Proxy Statement, as the case may be, then such Party, as the case may
be, shall promptly inform the other Parties thereof and shall cooperate with such other Parties in filing such amendment or supplement
with the SEC and, if appropriate, in mailing such amendment or supplement to Parent’s stockholders. The Company and Parent shall
each use commercially reasonable efforts to cause the Registration Statement and the Proxy Statement to comply with applicable federal
and state securities Laws requirements.
(b)
The Parties shall reasonably cooperate with each other and provide, and require their respective Representatives to provide, the other
Party and its Representatives, with all true, correct and complete information regarding such Party or its Subsidiaries that is required
by Law to be included in the Registration Statement and the Proxy Statement or reasonably requested by the other Party to be included
in the Registration Statement and the Proxy Statement.
(c)
Parent and the Company shall mutually agree on the form and substance of a Current Report on Form 8-K setting forth the anticipated Exchange
Ratio as of the anticipated Closing Date, which the Parties shall cause to be filed with the SEC as early as practicable prior to the
Parent Stockholders’ Meeting.
(d)
If, in connection with the preparation and filing of the Registration Statement or any other filing required by applicable Law or the
SEC’s review thereof, the SEC requests or requires that a tax opinion with respect to the U.S. federal income tax consequences
of the Merger be prepared and submitted (a “Tax Opinion”), (i) the Company, Parent and Merger Sub shall each use their
reasonable best efforts to deliver to Gibson, Dunn & Crutcher LLP, Bradley Arant Boult Cummings LLP or such other counsel as is reasonably
acceptable to Parent and the Company, respectively, in connection with any Tax Opinion to be rendered by such counsel, customary Tax
representation letters satisfactory to such counsel, dated and executed as of the date such relevant filing shall have been declared
effective by the SEC and such other date(s) as determined to be reasonably necessary by such counsel in connection with the preparation
and filing of such Registration Statement or any other filing required by applicable Law, and (ii) the Company and Parent shall each
use its reasonable best efforts to cause Gibson, Dunn & Crutcher LLP, Bradley Arant Boult Cummings LLP or such other counsel as is
reasonably acceptable to Parent and the Company, respectively, to furnish a Tax Opinion, subject to customary assumptions and limitations,
to the effect that the Intended Tax Treatment should apply to the Merger. Gibson, Dunn & Crutcher LLP, Bradley Arant Boult Cummings
LLP or such other counsel as is reasonably acceptable to Parent and the Company shall be entitled to rely on the Tax representation letters
in rendering the Tax Opinions. For the avoidance of doubt, in no event shall any such Tax Opinion be a condition to Closing.
5.2
Company Information Statement; Stockholder Written Consent.
(a)
Promptly after the Registration Statement shall have been declared effective under the Securities Act, and in any event no later than
three (3) Business Days thereafter, the Company shall prepare, with the cooperation of Parent, and cause to be mailed to Company’s
stockholders an information statement, which shall include a copy of the Proxy Statement (the “Information Statement”),
to solicit the approval by written consent from the Company stockholders sufficient for the Required Company Stockholder Vote in lieu
of a meeting pursuant to the ABCL, for purposes of (i) adopting and approving this Agreement and the Contemplated Transactions, (ii)
acknowledging that the approval given thereby is irrevocable and that such stockholder is aware of its appraisal rights for its shares
of Company Capital Stock pursuant to ABCL Article 13, a true and correct copy of which will be attached thereto, and that such stockholder
has received and read a copy of ABCL Article 13, (iii) acknowledging that by its approval of the Merger it is not entitled to appraisal
rights with respect to its shares of Company Capital Stock in connection with the Merger and thereby waives any rights to receive payment
of the fair value of its shares of Company Capital Stock under the ABCL, (iv) electing that the consummation of the Merger (and any plan
of merger related thereto) is not a Deemed Liquidation Event, as such term is defined in the Company’s Organizational Documents,
and (v) electing an automatic conversion of each share of Company Preferred Stock into shares of Company Common Stock immediately prior
to the Effective Time in accordance with the relevant provisions of the Company’s Organizational Documents (the “Preferred
Stock Conversion”) (collectively, the “Company Stockholder Matters”). Under no circumstances shall the Company
assert that any other approval or consent is necessary by its stockholders to approve this Agreement and the Contemplated Transactions.
All materials (including any amendments thereto) submitted to the stockholders of the Company in accordance with this Section 5.2(a)
shall be subject to Parent’s advance review and reasonable approval. The Parties shall reasonably cooperate with each other
and provide, and require their respective Representatives to provide, the other Party and its Representatives with all true, correct
and complete information regarding such Party or its Subsidiaries that is required by Law to be included in the Information Statement
or reasonably requested by the other Party to be included in the Information Statement.
(b)
The Company covenants and agrees that the Information Statement, including any pro forma financial statements included therein (and the
letter to stockholders and form of Company Stockholder Written Consent included therewith), will not, at the time that the Information
Statement or any amendment or supplement thereto is first mailed, distributed or otherwise made available to the stockholders of the
Company, at the time of receipt of the Required Company Stockholder Vote and at the Effective Time, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no covenant,
representation or warranty with respect to statements made in the Information Statement (and the letter to the stockholders and form
of Company Stockholder Written Consent included therewith), if any, based on information furnished in writing by Parent, any of its Subsidiaries
or any of their respective Representatives for inclusion therein. Each of the Parties shall use commercially reasonable efforts to cause
the Information Statement to comply with the applicable rules and regulations promulgated by the SEC and applicable federal and state
securities Laws requirements in all material respects.
(c)
Promptly following receipt of the Required Company Stockholder Vote, the Company shall prepare and mail a notice (the “Stockholder
Notice”) to every stockholder of the Company that did not execute the Company Stockholder Written Consent. The Stockholder
Notice shall (i) be a statement to the effect that the Company Board determined that the Merger is advisable in accordance with the ABCL
and in the best interests of the stockholders of the Company and authorized, approved and adopted this Agreement, the Merger and the
other Contemplated Transactions, (ii) provide the stockholders of the Company to whom it is sent with notice of the actions taken in
the Company Stockholder Written Consent, including the adoption and approval of this Agreement, the Merger and the other Contemplated
Transactions in accordance with the ABCL and the Organizational Documents of the Company and (iii) include a description of the appraisal
rights of the Company’s stockholders available under the ABCL, along with such other information as is required thereunder and
pursuant to applicable Law. All materials (including any amendments thereto) submitted to the stockholders of the Company in accordance
with this Section 5.2(c) shall be subject to Parent’s advance review and reasonable approval.
(d)
The Company agrees that: (i) the Company Board shall recommend that the Company’s stockholders vote to approve the Company Stockholder
Matters and shall use commercially reasonable efforts to solicit such approval from each of the Company Signatories within the time set
forth in Section 5.2(a) (the recommendation of the Company Board that the Company’s stockholders vote to adopt and approve
the Company Stockholder Matters being referred to as the “Company Board Recommendation”); and (ii) the Company
Board Recommendation shall not be withdrawn or modified (and the Company Board shall not publicly propose to withdraw or modify the Company
Board Recommendation) in a manner adverse to Parent, and no resolution by the Company Board or any committee thereof to withdraw or modify
the Company Board Recommendation in a manner adverse to Parent or to adopt, approve or recommend (or publicly propose to adopt, approve
or recommend) any Acquisition Proposal shall be adopted or proposed (the actions set forth in the foregoing clause (ii), collectively,
a “Company Board Adverse Recommendation Change”).
(e)
The Company’s obligation to solicit the consent of its stockholders to sign the Company Stockholder Written Consent in accordance
with Section 5.2(a) and Section 5.2(d) shall not be limited or otherwise affected by the commencement, disclosure, announcement
or submission of any Superior Offer or other Acquisition Proposal.
5.3
Parent Stockholders’ Meeting.
(a)
Promptly after the Registration Statement has been declared effective by the SEC under the Securities Act, Parent shall take all action
necessary under applicable Law to call, give notice of and hold a meeting of the holders of Parent Common Stock for the purpose of seeking
approval of this Agreement and the Contemplated Transactions, including:
(i)
the amendment of Parent’s certificate of incorporation to effect the NYSE Reverse Split;
(ii)
if applicable, the consummation of the Asset Dispositions pursuant to Section 4.7;
(iii)
the issuance of Parent Common Stock or other securities of Parent that represent (or are convertible into) more than twenty percent (20%)
of the shares of Parent Common Stock outstanding immediately prior to the Merger to the holders of Company Capital Stock, Company Options
and Company Warrants in connection with the Contemplated Transactions and the change of control of Parent resulting from the Contemplated
Transactions, in each case pursuant to the NYSE rules;
(iv)
the issuance of the Post-Merger Warrants to the holders of Parent Common Stock in connection with the Contemplated Transactions;
(v)
the amendment and restatement of the Parent’s certificate of incorporation, attached hereto as Exhibit F, upon the
Effective Time;
(vi)
the adoption of the new Parent Incentive Plan, attached hereto as Exhibit K, along with the reservation of 1,725,000 shares
of Parent Common Stock for use under the new Parent Incentive Plan;
(vii)
if not previously approved by Parent’s stockholders, the issuance of shares of Parent Common Stock that represent more than twenty
percent (20%) of the shares of Parent Common Stock outstanding immediately prior to conversion of the Parent Series B Preferred Stock
in connection with the conversion of the Parent Preferred Stock required in Section 4.11 and the change of control of Parent resulting
from the conversion of the Parent Preferred Stock, in each case pursuant to the NYSE rules; and
(viii)
any other proposals the Parties deem necessary or desirable to consummate the Contemplated Transactions.
(the
matters contemplated by Section 5.3(a)(i) through Section 5.3(a)(viii) are referred to as the “Parent Stockholder
Matters,” and such meeting, the “Parent Stockholders’ Meeting”).
(b)
The Parent Stockholders’ Meeting shall be held as promptly as practicable after the Registration Statement is declared effective
under the Securities Act and, in any event, no later than forty-five (45) calendar days after the effective date of the Registration
Statement. Parent shall take reasonable measures to ensure that all proxies solicited in connection with the Parent Stockholders’
Meeting are solicited in compliance with all applicable Laws. Notwithstanding anything to the contrary contained herein, if on the date
of the Parent Stockholders’ Meeting, or a date preceding the date on which the Parent Stockholders’ Meeting is scheduled,
Parent reasonably believes that (i) it will not receive proxies sufficient to obtain the Required Parent Stockholder Vote, whether or
not a quorum would be present, or (ii) it will not have sufficient shares of Parent Common Stock represented (whether in person or by
proxy) to constitute a quorum necessary to conduct the business of the Parent Stockholders’ Meeting, Parent may postpone or adjourn,
or make one or more successive postponements or adjournments of, the Parent Stockholders’ Meeting as long as the date of the Parent
Stockholders’ Meeting is not postponed or adjourned more than an aggregate of sixty (60) calendar days in connection with any postponements
or adjournments.
(c)
Parent agrees that, subject to Section 5.3(d): (i) the Parent Board shall recommend that the holders of Parent Common Stock vote
to approve the Parent Stockholder Matters and shall use commercially reasonable efforts to solicit such approval within the timeframe
set forth in Section 5.3(b) above, (ii) the Proxy Statement shall include a statement to the effect that the Parent Board recommends
that Parent’s stockholders vote to approve the Parent Stockholder Matters (the recommendation of the Parent Board with respect
to the Parent Stockholder Matters being referred to as the “Parent Board Recommendation”); and (iii) the Parent
Board Recommendation shall not be withheld, amended, withdrawn or modified (and the Parent Board shall not publicly propose to withhold,
amend, withdraw or modify the Parent Board Recommendation) in a manner adverse to the Company, and no resolution by the Parent Board
or any committee thereof to withdraw or modify the Parent Board Recommendation in a manner adverse to the Company or to adopt, approve
or recommend (or publicly propose to adopt, approve or recommend) any Acquisition Proposal shall be adopted or proposed (the actions
set forth in the foregoing clause (iii), collectively, a “Parent Board Adverse Recommendation Change”).
(d)
Notwithstanding anything to the contrary contained in this Agreement, and subject to compliance with Section 4.4 and this Section
5.3(d), if at any time prior to the approval of the Parent Stockholder Matters at the Parent Stockholders’ Meeting by the Required
Parent Stockholder Vote:
(i)
if Parent has received a bona fide Acquisition Proposal (which Acquisition Proposal did not arise out of a material breach of
Section 4.4) from any Person that has not been withdrawn and after consultation with outside legal counsel, the Parent Board shall
have determined, in good faith, that such Acquisition Proposal is a Superior Offer, (x) the Parent Board may make a Parent Board Adverse
Recommendation Change or (y) Parent may terminate this Agreement pursuant to Section 9.1(j) to enter into a Permitted Alternative
Agreement with respect to such Superior Offer, if and only if: (A) the Parent Board determines in good faith, after consultation with
Parent’s outside legal counsel, that the failure to do so would be reasonably likely to be inconsistent with the fiduciary duties
of the Parent Board to Parent’s stockholders under applicable Law; (B) Parent shall have given the Company prior written notice
of its intention to consider making a Parent Board Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.1(j)
at least four (4) Business Days prior to making any such Parent Board Adverse Recommendation Change or termination (a “Determination
Notice”; and such period, the “Parent Notice Period”) (which notice shall not constitute a Parent Board
Adverse Recommendation Change); and (C)(1) Parent shall have provided to the Company a summary of the material terms and conditions
of the Acquisition Proposal in accordance with Section 4.4(b), (2) Parent shall, and shall have caused its Representatives to,
during the Parent Notice Period, negotiate in good faith with the Company (to the extent the Company desires to negotiate) to enable
the Company to propose in writing an offer binding on the Company to effect such adjustments to the terms and conditions of this Agreement
so that such Acquisition Proposal ceases to constitute a Superior Offer, and (3) after considering the results of such negotiations and
giving effect to the proposals made by the Company, if any, after consultation with outside legal counsel, the Parent Board shall have
determined, in good faith, that such Acquisition Proposal is a Superior Offer and that the failure to make the Parent Board Adverse Recommendation
Change or terminate this Agreement pursuant to Section 9.1(j) would be inconsistent with the fiduciary duties of the Parent Board
to Parent’s stockholders under applicable Law; provided, that (x) the Company receives written notice from Parent
confirming that the Parent Board has determined to change its recommendation during the Parent Notice Period, which notice shall include
a description in reasonable detail of the reasons for such Parent Board Adverse Recommendation Change and written copies of any relevant
proposed transaction agreements with any party making a potential Superior Offer or to terminate this Agreement pursuant to Section
9.1(j) during the Parent Notice Period; (y) during any Parent Notice Period, the Company shall be entitled to deliver to Parent
one or more counterproposals to such Acquisition Proposal and Parent will, and cause its Representatives to, negotiate with the Company
in good faith (to the extent the Company desires to negotiate) to enable the Company to propose in writing an offer binding on the Company
to effect such adjustments to the terms and conditions of this Agreement so that the applicable Acquisition Proposal ceases to constitute
a Superior Offer; and (z) in the event of any material amendment to any Superior Offer (including any revision in price or percentage
of the combined company that Parent’s stockholders would receive as a result of such potential Superior Offer), Parent shall be
required to provide the Company with notice of such material amendment and the Parent Notice Period shall be extended, if applicable,
to ensure that at least two (2) Business Days remain in the Parent Notice Period following such notification during which the parties
shall comply again with the requirements of this Section 5.3(d) and the Parent Board shall not make a Parent Board Adverse Recommendation
Change or terminate this Agreement pursuant to Section 9.1(j) prior to the end of such Parent Notice Period as so extended (it
being understood that there may be multiple extensions); and
(ii)
other than in connection with an Acquisition Proposal, the Parent Board may make a Parent Board Adverse Recommendation Change in response
to a Parent Change in Circumstance, if and only if: (A) the Parent Board determines in good faith, after consultation with Parent’s
outside legal counsel, that the failure to do so would be reasonably likely to be inconsistent with the fiduciary duties of the Parent
Board to Parent’s stockholders under applicable Law; (B) Parent shall have given the Company a Determination Notice at least
four (4) Business Days prior to making any such Parent Board Adverse Recommendation Change; and (C)(1) Parent shall have specified
the Parent Change in Circumstance in reasonable detail, including the material facts and circumstances related to the applicable Parent
Change in Circumstance, (2) Parent shall have given the Company the four (4) Business Days after the Determination Notice to propose
revisions to the terms of this Agreement or make another proposal, and shall have made its Representatives reasonably available to negotiate
in good faith with the Company (to the extent the Company desires to do so) with respect to such proposed revisions or other proposal,
if any, and (3) after considering the results of any such negotiations and giving effect to the proposals made by the Company, if any,
after consultation with outside legal counsel, the Parent Board shall have determined, in good faith, that the failure to make the Parent
Board Adverse Recommendation Change in response to such Parent Change in Circumstance or terminate this Agreement pursuant to Section
9.1(j) would be inconsistent with its fiduciary duties of the Parent Board to Parent’s stockholders under applicable Law. For
the avoidance of doubt, the provisions of this Section 5.3(d)(ii) shall also apply to any material change to the facts and circumstances
relating to such Parent Change in Circumstance and require a new Determination Notice, except that the references to four (4) Business
Days shall be deemed to be two (2) Business Days.
(e)
Nothing contained in this Agreement shall prohibit Parent or the Parent Board from (i) complying with Rules 14d-9 and 14e-2(a) promulgated
under the Exchange Act, (ii) issuing a “stop, look and listen” communication or similar communication of the type contemplated
by Section 14d-9(f) under the Exchange Act or (iii) otherwise making any disclosure to Parent’s stockholders; provided,
however, that any disclosure made by Parent or the Parent Board pursuant to the foregoing shall be limited to a statement that
Parent is unable to take a position with respect to the bidder’s tender offer unless the Parent Board determines in good faith,
after consultation with its outside legal counsel, that failure to make additional disclosure would be inconsistent with its fiduciary
duties under applicable Law. Parent shall not withdraw or modify in a manner adverse to the Company the Parent Board Recommendation unless
specifically permitted pursuant to the terms of Section 5.3(d). Unless the Parent Board has effected a Parent Board Adverse Recommendation
Change in accordance with this Section 5.3 and this Agreement is otherwise terminated pursuant to Section 9.1, Parent’s
obligation to call, give notice of and hold the Parent Stockholders’ Meeting in accordance with Section 5.3(b) shall not
be limited or otherwise affected by the commencement, disclosure, announcement or submission of any Acquisition Proposal, or by any Parent
Board Adverse Recommendation Change.
5.4
Regulatory Approvals. Each Party shall use commercially reasonable efforts to file or otherwise submit, as soon as practicable
after the date of this Agreement, all applications, notices, reports, filings and other documents required to be filed by such Party
with or otherwise submitted by such Party to any Governmental Body with respect to the Contemplated Transactions, to submit promptly
any additional information requested by any such Governmental Body, and to keep the other Party promptly informed of any communication
from or to any Governmental Body.
5.5
Options and Warrants.
(a)
At the Effective Time, each Company Option that is outstanding and unexercised immediately prior to the Effective Time under the Company
Incentive Plan, whether or not vested, shall be converted into and become an option to purchase Parent Common Stock, and Parent shall
assume the Company Incentive Plan (if necessary) and each such Company Option in accordance with the terms (as in effect as of the date
of this Agreement) of the Company Incentive Plan and the terms of the stock option agreement by which such Company Option is evidenced
(but with changes to such documents as Parent in good faith determines are appropriate to reflect the substitution of the Company Options
by Parent to purchase shares of Parent Common Stock). All rights, terms, and restrictions with respect to Company Common Stock under
Company Options assumed by Parent shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and
after the Effective Time: (i) each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock; (ii)
the number of shares of Parent Common Stock subject to each Company Option assumed by Parent shall be determined in accordance with the
Allocation Certificate as provided in Section 5.15; (iii) the per share exercise price for the Parent Common Stock issuable upon
exercise of each Company Option assumed by Parent shall be determined in accordance with the Allocation Certificate as provided in Section
5.15; and (iv) any restriction on the exercise of any Company Option assumed by Parent shall continue in full force and effect and
the term, exercisability, vesting schedule, and other provisions of such Company Option shall otherwise remain unchanged; provided,
however, that: (A) the determination in the Allocation Certificate of the number of shares of Parent Common Stock subject to each
Company Option assumed by Parent shall be based on the same ratio as that applied to the Company Common Stock to determine the number
of shares of Parent Common Stock each holder of Company Common Stock shall receive; (B) the determination in the Allocation Certificate
of the per share exercise price for the Parent Common Stock issuable upon exercise of each Company Option assumed by Parent shall be
adjusted equitably to reflect the ratio described in clause (A); (C) to the extent provided under the terms of the respective stock option
agreements governing the Company Options and the Company Incentive Plan, Parent may amend the terms of the Company Options and the Company
Incentive Plan, in accordance with the terms thereof, to reflect Parent’s substitution of the Company Options with options to purchase
Parent Common Stock (such as by making any change in control or similar definition relate to Parent and having any provision that provides
for the adjustment of Company Options upon the occurrence of certain corporate events relate to corporate events that relate to Parent
and/or Parent Common Stock), and such Company Options shall be subject to further adjustment as appropriate and necessary to reflect
any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization,
or other similar transaction with respect to Parent Common Stock subsequent to the Effective Time; and (D) the Parent Board or a
committee thereof shall succeed to the authority and responsibility of the Company Board or any committee thereof with respect to each
Company Option assumed by Parent. Each Company Option so assumed by Parent is a nonqualified stock option (that is, an option that is
not intended to qualify as an incentive stock option as defined in Section 422 of the Code), and, further, the assumption of such Company
Option pursuant to this Section 5.5(a) shall be effected in a manner that satisfies the requirements of Section 409A of the Code
and the Treasury Regulations promulgated thereunder (including the applicable portions of Treasury Regulation Section 1.424-1 as applied
under Treasury Regulation Section 1.409A-1(b)(5)(v)(D)), and this Section 5.5(a) will be construed consistent with this intent.
(b)
Parent shall file with the SEC, promptly, but no later than thirty (30) calendar days, after the Effective Time, a registration statement
on Form S-8 (or any successor form), if available for use by Parent, relating to the shares of Parent Common Stock that are issuable
with respect to Company Options assumed by Parent in accordance with Section 5.5(a).
(c)
At the Effective Time, each Company Warrant that is outstanding and unexercised as of immediately prior to the Effective Time, if any,
shall be converted into and become a warrant to purchase Parent Common Stock and Parent shall assume each such Company Warrant in accordance
with its terms. All rights with respect to Company Capital Stock under Company Warrants assumed by Parent shall thereupon be converted
into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time: (i) each Company Warrant assumed by
Parent may be exercised solely for shares of Parent Common Stock; (ii) the number of shares of Parent Common Stock subject to each
Company Warrant assumed by Parent shall be determined in accordance with the Allocation Certificate as provided in Section 5.15;
(iii) the per share exercise price for the Parent Common Stock issuable upon exercise of each Company Warrant assumed by Parent shall
be determined in accordance with the Allocation Certificate as provided in Section 5.15; and (iv) any restriction on any Company
Warrant assumed by Parent shall continue in full force and effect and the term and other provisions of such Company Warrant shall otherwise
remain unchanged; provided, however, that: (A) the determination in the Allocation Certificate of the number of shares
of Parent Common Stock subject to each Company Warrant assumed by Parent shall be based on the same ratio as that applied to the Company
Common Stock to determine the number of shares of Parent Common Stock each holder of Company Common Stock shall receive; and (B) the
determination in the Allocation Certificate of the per share exercise price for the Parent Common Stock issuable upon exercise of each
Company Warrant assumed by Parent shall be adjusted equitably to reflect the ratio described in clause (A).
(d)
Prior to the Effective Time, the Company shall take all actions that may be necessary (under the Company Incentive Plan, the Company
Warrants and otherwise) to effectuate the provisions of this Section 5.5 and to ensure that, from and after the Effective Time,
holders of Company Options and Company Warrants have no rights with respect thereto other than those specifically provided in this Section
5.5.
(e)
Immediately prior to the NYSE Reverse Split, each Out of the Money Parent Option that is outstanding and unexercised as of immediately
prior to the NYSE Reverse Split, if any, shall be canceled without the payment of consideration therefor. In accordance with the terms
and conditions set forth in the Parent Incentive Plan, Parent shall notify each holder of an Out of the Money Parent Option that each
such Out of the Money Parent Option shall become exercisable at least ten days prior to the NYSE Reverse Split and shall thereafter be
canceled.
5.6
Indemnification of Officers and Directors.
(a)
From the Effective Time through the sixth (6th) anniversary of the date on which the Effective Time occurs, each of Parent and the Surviving
Corporation, jointly and severally, shall indemnify and hold harmless each person who is now, or has been at any time prior to the date
of this Agreement, or who becomes prior to the Effective Time, a director, officer, fiduciary or agent of Parent or the Company and their
respective Subsidiaries, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities,
damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection
with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or
pertaining to the fact that the D&O Indemnified Party is or was a director, officer, fiduciary or agent of Parent or of the Company
or their respective Subsidiaries, whether asserted or claimed prior to, at or after the Effective Time, in each case, to the fullest
extent permitted under applicable Law for directors or officers of corporations in the relevant jurisdiction. Each D&O Indemnified
Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit, proceeding or investigation
from each of Parent and the Surviving Corporation, jointly and severally, upon receipt by Parent or the Surviving Corporation from the
D&O Indemnified Party of a request therefor; provided, that any such person to whom expenses are advanced provides an
undertaking to Parent, to the extent then required by applicable Law, to repay such advances if it is ultimately determined that such
person is not entitled to indemnification.
(b)
The provisions of the Organizational Documents of Parent or any of its Subsidiaries with respect to indemnification, advancement of expenses
and exculpation of present and former directors and officers of Parent or any of its Subsidiaries that are set forth in the Organizational
Documents of Parent or any of its Subsidiaries as of the date of this Agreement shall not be amended, modified or repealed for a period
of six (6) years from the Effective Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior
to the Effective Time, were officers or directors of Parent or any of its Subsidiaries, unless such modification is required by applicable
Law. The Organizational Documents of the Surviving Corporation shall contain, and Parent shall cause the Organizational Documents of
the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation
of present and former directors and officers as those set forth in the Organizational Documents of Parent as of the date of this Agreement.
(c)
From and after the Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the obligations of the Company
or any of its Subsidiaries to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification
provisions under the Organizational Documents of the Company or any of its Subsidiaries and pursuant to any indemnification agreements
between the Company or any of its Subsidiaries and such D&O Indemnified Parties, with respect to claims arising out of matters occurring
at or prior to the Effective Time and (ii) Parent shall fulfill and honor in all respects the obligations of Parent or any of its Subsidiaries
to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under the Organizational
Documents of Parent or any of its Subsidiaries and pursuant to any indemnification agreements between Parent or any of its Subsidiaries
and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Effective Time.
(d)
From and after the Effective Time, Parent shall maintain directors’ and officers’ liability insurance policies, with an effective
date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies
similarly situated to Parent. In addition, Parent shall purchase, prior to the Effective Time, a six (6)-year prepaid “tail policy”
for the non-cancellable extension of the directors’ and officers’ liability coverage of Parent’s and any of its Subsidiaries’
existing directors’ and officers’ insurance policies and Parent’s existing fiduciary liability insurance policies (if
any), in each case, for a claims reporting or discovery period of at least six (6) years from and after the Effective Time with respect
to any claim related to any period of time at or prior to the Effective Time. During the term of the “tail” policy, Parent
shall not take any action following the Effective Time to cause such “tail” policy to be canceled or any provision therein
to be amended or waived in any manner that would adversely affect in any material respect the rights of its or any of its Subsidiaries’
former and current officers and directors.
(e)
From and after the Effective Time, Parent shall pay all expenses, including reasonable attorneys’ fees, that are incurred by the
persons referred to in this Section 5.6 in connection with their successful enforcement of the rights provided to such persons
in this Section 5.6.
(f)
All rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the Effective Time,
whether asserted or claimed prior to, at or after the Closing, now existing in favor of the current or former directors, officers or
employees, as the case may be, of Parent or the Company or any of their respective Subsidiaries as provided in their respective Organizational
Documents or in any agreement shall survive the Merger and shall continue in full force and effect. The provisions of this Section
5.6 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Parent and
the Company and any of their respective Subsidiaries by Law, charter, statute, bylaw or agreement, and shall operate for the benefit
of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their representatives.
(g)
From and after the Effective Time, in the event Parent or the Surviving Corporation or any of their respective successors or assigns
(i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation
or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each such case, proper
provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed
to the obligations set forth in this Section 5.6. Parent shall cause the Surviving Corporation to perform all of the obligations
of the Surviving Corporation under this Section 5.6. The obligations set forth in this Section 5.6 shall not be terminated,
amended or otherwise modified in any manner that adversely affects any D&O Indemnified Party, or any person who is a beneficiary
under the policies referred to in this Section 5.6 and their heirs and representatives, without the prior written consent of such
affected D&O Indemnified Party or other person
5.7
Additional Agreements. The Parties shall (a) use commercially reasonable efforts to cause to be taken all actions necessary to
consummate the Contemplated Transactions and (b) reasonably cooperate with the other Parties and provide the other Parties with such
assistance as may be reasonably requested for the purpose of facilitating the performance by each Party of its respective obligations
under this Agreement and to enable the Surviving Corporation to continue to meet its obligations under this Agreement following the Closing.
Without limiting the generality of the foregoing, each Party to this Agreement: (i) shall make all filings and other submissions (if
any) and give all notices (if any) required to be made and given by such Party in connection with the Contemplated Transactions;
(ii) shall use reasonable best efforts to obtain each Consent (if any) reasonably required to be obtained (pursuant to any applicable
Law or Contract, or otherwise) by such Party in connection with the Contemplated Transactions or for such Contract (with respect to Contracts
set forth in Section 5.7 of the Company Disclosure Schedule or Section 5.7 of the Parent Disclosure Schedule, as applicable)
to remain in full force and effect; (iii) shall use commercially reasonable efforts to lift any injunction prohibiting, or any other
legal bar to, the Contemplated Transactions; and (iv) shall use commercially reasonable efforts to satisfy the conditions precedent
to the consummation of this Agreement.
5.8
Public Announcement. The initial press release relating to this Agreement shall be a joint press release issued by the Company
and Parent and thereafter Parent and the Company shall consult with each other before issuing any further press release(s) or otherwise
making any public statement or making any announcement to Parent Associates or Company Associates (to the extent not previously issued
or made in accordance with this Agreement) with respect to the Contemplated Transactions and shall not issue any such press release,
public statement or announcement to Parent Associates or Company Associates without the other Party’s written consent (which shall
not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing: (a) each Party may, without such consultation or
consent, make any public statement in response to specific questions from the press, analysts, investors or those attending industry
conferences, make internal announcements to employees and make disclosures in Parent SEC Documents, so long as any such statements, announcements
or disclosures are consistent with and do not disclose material information not previously disclosed in previous press releases, public
disclosures or public statements made jointly by the Parties (or individually, if approved by the other Party) in compliance with this
Section 5.8; (b) a Party may, without the prior consent of the other Party hereto but subject to giving advance notice to
the other Party of, and consulting with the other Party regarding, the text of such press release, announcement or statement, issue any
such press release or make any such public announcement or statement which Parent shall have determined in good faith, upon the advice
of outside legal counsel, is required by any applicable Law; and (c) Parent need not consult with the Company in connection with
such portion of any press release, public statement or filing to be issued or made pursuant to Section 5.3(e) or with respect
to any Acquisition Proposal or Parent Board Adverse Recommendation Change.
5.9
Listing. Parent shall use its commercially reasonable efforts, (a) to maintain its existing listing on NYSE until the Closing
Date and to obtain approval of the listing of the combined company on NYSE; (b) without derogating from the generality of the requirements
of the foregoing clause (a) and to the extent required by the rules and regulations of NYSE, (i) to prepare and submit to NYSE a notification
form for the listing of the shares of Parent Common Stock to be issued in connection with the Contemplated Transactions, and (ii) to
cause such shares to be approved for listing (subject to official notice of issuance); (c) to effect the NYSE Reverse Split and
(d) to the extent required by to Section 101 of the NYSE American Company Guide, to file an initial listing application for the Parent
Common Stock on NYSE (the “NYSE Listing Application”) and to cause such NYSE Listing Application to be conditionally
approved prior to the Effective Time. The Parties will use commercially reasonable efforts to coordinate with respect to compliance with
NYSE rules and regulations. The Company will cooperate with Parent as reasonably requested by Parent with respect to the NYSE Listing
Application and promptly furnish to Parent all information concerning the Company and its stockholders that may be required or reasonably
requested in connection with any action contemplated by this Section 5.9.
5.10
Tax Matters.
(a)
For United States federal income Tax purposes, (i) the Parties intend that the Merger qualify as a “reorganization” within
the meaning of Section 368(a) of the Code (the “Intended Tax Treatment”), and (ii) this Agreement is intended to be,
and is hereby adopted as, a “plan of reorganization” for purposes of Section 354 and 361 of the Code and Treasury Regulations
Sections 1.368-2(g) and 1.368-3(a), to which Parent, Merger Sub and the Company are parties under Section 368(b) of the Code.
(b)
The Parties shall use their respective commercially reasonable efforts to cause the Merger to qualify, and will not take any action or
cause any action to be taken which action would reasonably be expected to prevent the Merger from qualifying, for the Intended Tax Treatment.
The Parties shall use commercially reasonable efforts to operate the Surviving Corporation so as to meet the “continuity of business
enterprise” requirement. The Parties shall not file any U.S. federal, state or local Tax Return in a manner that is inconsistent
with the Intended Tax Treatment, unless otherwise required by applicable Law.
5.11
Directors and Officers. The Parties shall use reasonable best efforts and take all necessary action so that (a) effective as of
the Effective Time, the Parent Board is comprised of seven (7) members, with two (2) of such members designated by Parent, two (2) of
such members designated by the Company, two (2) of such member whom shall meet NYSE director independence requirements and be designated
by mutual agreement of Parent and the Company, and one (1) member which shall be the Company’s Chief Executive Officer as of immediately
following the Closing, (b) the Persons listed in Exhibit L under the heading “Officers” are elected
or appointed, as applicable, to the positions of officers of Parent, as set forth therein, to serve in such positions effective as of
the Effective Time until successors are duly appointed and qualified in accordance with applicable Law and (c) the Persons listed in
Exhibit L under the heading “Directors” are elected or appointed, as applicable, to the positions of
directors of Parent, as set forth therein, to serve in such positions effective as of the Effective Time until successors are duly appointed
and qualified in accordance with applicable Law. If any Person listed in Exhibit L is unable or unwilling to serve as an
officer of Parent, as set forth therein, as of the Effective Time, the Parties shall mutually agree upon a successor. If any Person listed
in Exhibit L is unable or unwilling to serve as a director of Parent, as set forth therein, as of the Effective Time, the
Party appointing such Person (as set forth on Exhibit L) shall designate a successor. The Persons listed in Exhibit
L under the heading “Board Designees - Parent” shall be Parent’s designees pursuant to clause (a) of
this Section 5.11 (which list may be changed by Parent at any time prior to the Closing by written notice to the Company to include
different board designees who are reasonably acceptable to the Company). The Persons listed in Exhibit L under the heading
“Board Designees - Company” shall be the Company’s designees pursuant to clause (a) of this Section 5.11
(which list may be changed by the Company at any time prior to the Closing by written notice to Parent to include different board
designees who are reasonably acceptable to Parent). The Persons listed in Exhibit L under the heading “Board Designees
- Independent” shall be the independent members mutually agreed upon between the Company and Parent pursuant to clause (a)
of this Section 5.11 (which list may be changed by mutual written agreement of the Company and Parent at any time prior to the
Closing).
5.12
Termination of Certain Agreements and Rights.
(a)
The Company shall cause any Investor Agreements (excluding the Company Stockholder Support Agreements) to be terminated immediately prior
to the Effective Time, without any liability being imposed on the part of Parent or the Surviving Corporation.
(b)
Parent agrees to use commercially reasonable efforts to (a) terminate, assign or fully perform all Parent Contracts (except (i) Parent
Contracts with obligations that do not exceed $25,000 for Parent over a 12-month period, (ii) Parent Contracts set forth on Schedule
5.12 of the Parent Disclosure Schedule and (iii) any other Parent Contract agreed to by Parent and Company) (the “Specified
Parent Contracts”) and (b) fully satisfy, waive or otherwise discharge all obligations of Parent under all Specified Parent
Contracts, in each case prior to the Closing.
5.13
Section 16 Matters. Prior to the Effective Time, Parent and the Company shall take all such steps as may be required (to the extent
permitted under applicable Laws) to cause any acquisitions of Parent Common Stock, restricted stock awards to acquire Parent Common Stock
and any options to purchase Parent Common Stock in connection with the Contemplated Transactions, by each individual who is reasonably
expected to become subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent, to be exempt under
Rule 16b-3 promulgated under the Exchange Act. Promptly following the date of this Agreement and at least ten (10) calendar days prior
to the Closing Date, the Company shall furnish the following information to Parent for each individual who, immediately after the Effective
Time, will become subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent: (a) the number of
shares of Company Capital Stock owned by such individual and expected to be exchanged for shares of Parent Common Stock pursuant to the
Merger, and (b) the number of other derivative securities (if any) with respect to Company Capital Stock owned by such individual and
expected to be converted into shares of Parent Common Stock, restricted stock awards to acquire Parent Common Stock or derivative securities
with respect to Parent Common Stock in connection with the Merger.
5.14
Cooperation. Each Party shall cooperate reasonably with the other Party and shall provide the other Party with such assistance
as may be reasonably requested for the purpose of facilitating the performance by each Party of its respective obligations under this
Agreement and to enable the combined entity to continue to meet its obligations following the Effective Time.
5.15
Allocation Certificates.
(a)
The Company will prepare and deliver to Parent no later than three (3) Business Days prior to the Closing Date a certificate signed by
the Chief Financial Officer of the Company in a form reasonably acceptable to Parent setting forth (as of immediately prior to the Effective
Time) (i) each holder of Company Capital Stock, Company Options and Company Warrants, (ii) such holder’s name, address and email
address; (iii) the number and type of Company Capital Stock held and/or underlying the Company Options and Company Warrants as of
the immediately prior to the Effective Time for each such holder; (iv) the number of shares of Parent Common Stock to be issued
to such holder, or to underlie any Parent Option, Parent Warrant or Parent RSU to be issued to such holder, pursuant to this Agreement
in respect of the Company Capital Stock, Company Options or Company Warrants held by such holder as of immediately prior to the Effective
Time; and (v) the exercise price of any Parent Option, Parent Warrant or Parent RSU to be issued to such holder, pursuant to this Agreement
in respect of the Company Options or Company Warrants held by such holder as of immediately prior to the Effective Time (the “Allocation
Certificate”).
(b)
Parent will prepare and deliver to the Company at least three (3) Business Days prior to the Closing Date a certificate signed by the
Chief Financial Officer of Parent in a form reasonably acceptable to the Company, setting forth, as of immediately prior to the Effective
Time (i) each record holder of Parent Common Stock, Parent Warrants, Parent Options or Parent RSUs, (ii) such record holder’s name
and address and (iii) the number of shares of Parent Common Stock held and/or underlying the Parent Warrants, Parent Options or Parent
RSUs as of the Effective Time for such holder (the “Parent Outstanding Shares Certificate”).
5.16
Company Financial Statements. As promptly as reasonably practicable following the date of this Agreement: (i) and no later than
fifteen (15) calendar days after the date hereof, the Company will furnish to Parent audited consolidated financial statements for the
fiscal year ended 2022 (the “Company Audited Financial Statements”); and (ii) the Company will furnish to Parent
unaudited interim consolidated financial statements for each interim period completed prior to Closing that would be required to be included
in the Registration Statement or any periodic report due prior to the Closing if the Company were subject to the periodic reporting requirements
under the Securities Act or the Exchange Act (the “Company Interim Financial Statements”). Each of the Company Audited
Financial Statements and the Company Interim Financial Statements will be suitable for inclusion in the Proxy Statement and the Registration
Statement and prepared in accordance with GAAP as applied on a consistent basis during the periods involved (except in each case as described
in the notes thereto) and on that basis will present fairly, in all material respects, the consolidated financial position and the results
of operations, changes in stockholders’ equity, and cash flows of the Company and its consolidated Subsidiaries as of the dates
of and for the periods referred to in the Company Financial Statements, the Company Audited Financial Statements and Company Interim
Financial Statements, as the case may be.
5.17
Takeover Statutes. If any Takeover Statute is or may become applicable to the Contemplated Transactions, each of the Company,
the Company Board, Parent and the Parent Board, as applicable, shall grant such approvals and take such actions as are necessary so that
the Contemplated Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise
act to eliminate or minimize the effects of such Takeover Statute on the Contemplated Transactions.
5.18
Stockholder Litigation. Until the earlier of the termination of this Agreement in accordance with its terms or the Effective Time,
Parent shall (a) promptly advise the Company in writing of any stockholder litigation or investigation against it or its directors relating
to this Agreement, the Merger or the Contemplated Transactions and keep the Company fully informed regarding such stockholder litigation
and (b) give the Company the opportunity to participate in the defense or settlement of any stockholder litigation or investigation relating
to this Agreement or any of the Contemplated Transactions, and not settle any such litigation or investigation without the Company’s
written consent, which will not be unreasonably withheld, conditioned or delayed.
5.19
Parent Benefit Plans. No later than five (5) Business Days before the Closing Date, the Parent shall terminate, effective as of
the day immediately preceding the date the Company becomes a member of the same controlled group of corporations (as defined in Section
414(b) of the Code) as Parent, any and all 401(k) plans maintained by the Parent or any of its Subsidiaries. The Parent shall promptly
provide Company with evidence that the 401(k) plan(s) of the Parent and/or its Subsidiaries have been terminated pursuant to resolutions
of the Parent’s Board of Directors or the board of directors of its Subsidiaries, as applicable. The form and substance of such
resolutions shall be subject to review and approval of the Company, which shall not be unreasonably withheld, conditioned or delayed.
The Parent shall also take such other actions in furtherance of terminating any such 401(k) plan(s) as Company may reasonably request.
The intent of the Parties is to have the Company’s 401(k) plan and its other employee benefit plans become the employee benefit
plans of the Parent and its Subsidiaries in order to reduce the disruption of the employees of the Company and avoid the duplication
of plans. Following the Effective Time, the parties agree to cooperate to transition all Parent Benefit Plans (other than the Parent
Incentive Plan, employment agreements, and severance arrangements) to Company Benefit Plans as soon after the Effective Time as practicable.
The Parent shall promptly provide Company with evidence that such Parent Benefit Plans are being transitioned and terminated pursuant
to resolutions of the Parent’s Board of Directors or the board of directors of its Subsidiaries, as applicable. The form and substance
of such resolutions shall be subject to review and approval of the Company, which shall not be unreasonably withheld. The Parent shall
also take such other actions in furtherance of transitioning and terminating such Parent Benefit Plans as the Company may reasonably
request.
5.20
Company 280G Actions. To the extent that any “disqualified individual” (within the meaning of Section 280G(c) of the
Code and the regulations thereunder) has the right to receive any payments or benefits that could be deemed to constitute “parachute
payments” (within the meaning of Section 280G(b)(2) of the Code and the regulations thereunder), then, the Company shall (i) no
later than five Business Days prior to the Effective Time, solicit and use reasonable efforts to obtain from each such “disqualified
individual” a waiver of such disqualified individual’s rights to some or all of such payments or benefits (to the extent
such waiver is obtained, these amounts are referred to as the “Waived 280G Benefits”) so that any remaining payments
and/or benefits shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G(a) of the Code
and the regulations thereunder), and (ii) no later than three Business Days prior to the Effective Time, with respect to each individual
who agrees to the waiver described in clause (i), submit to a vote or consent of the holders of the Company Capital Stock entitled to
vote on such matters, in the manner required under Section 280G(b)(5) of the Code and the regulations promulgated thereunder, along with
disclosure intended to satisfy such requirements (including Q&A 7 of Section 1.280G-1 of such regulations), the right of any such
“disqualified individual” to receive the Waived 280G Benefits. Prior to soliciting such waivers and approval, the Company
shall provide drafts of such waivers and disclosure and approval materials to Parent for its review and comment no later than two Business
Days prior to soliciting such waivers and soliciting such approvals. Prior to the Effective Time, the Company shall deliver to Parent
evidence reasonably acceptable to Parent that a vote or consent of the holders of the Company Capital Stock was solicited in accordance
with the foregoing provisions of this Section 5.20 and that either (i) the requisite number of votes or consents of the holders of the
Company Capital Stock was obtained with respect to the Waived 280G Benefits (the “280G Approval”) or (ii) the 280G
Approval was not obtained.
SECTION
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH PARTY
The
obligations of each Party to effect the Merger and otherwise consummate the Contemplated Transactions to be consummated at the Closing
are subject to the satisfaction or, to the extent permitted by applicable Law, the written waiver by each of the Parties, at or prior
to the Closing, of each of the following conditions:
6.1
No Restraints. No temporary restraining order, preliminary or permanent injunction or other order preventing the consummation
of the Contemplated Transactions shall have been issued by any court of competent jurisdiction or other Governmental Body of competent
jurisdiction and remain in effect and there shall not be any Law which has the effect of making the consummation of the Contemplated
Transactions illegal.
6.2
Stockholder Approval. (a) Parent shall have obtained the Required Parent Stockholder Vote and (b) the Company shall have obtained
the Required Company Stockholder Vote.
6.3
Listing. (a) The existing shares of Parent Common Stock shall have been continually listed on NYSE as of and from the date of
this Agreement through the Closing Date and (b) the shares of Parent Common Stock to be issued in the Contemplated Transactions pursuant
to this Agreement shall have been approved for listing (subject to official notice of issuance) on NYSE as of the Closing.
6.4
Effectiveness of Registration Statement. The Registration Statement shall have become effective in accordance with the provisions
of the Securities Act, and shall not be subject to any stop order or proceeding (or threatened proceeding by the SEC) seeking a stop
order with respect to the Registration Statement that has not been withdrawn.
6.5
Side Letter. Parent, the Company and Juvenescence shall have entered into a letter agreement in substantially the form attached
hereto as Exhibit M (the “Side Letter”). Juvenescence shall have converted all of the Parent Preferred
Stock into Parent Common Stock prior to the NYSE Reverse Split.
6.6
NYSE Reverse Split. The NYSE Reverse Split shall have occurred and the shares of Parent Common Stock outstanding immediately prior
to the Effective Time shall be approximately 2,500,000.
SECTION
7. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB
The
obligations of Parent and Merger Sub to effect the Merger and otherwise consummate the Contemplated Transactions to be consummated at
the Closing are subject to the satisfaction or the written waiver by Parent, at or prior to the Closing, of each of the following conditions:
7.1
Accuracy of Representations. The Company Fundamental Representations shall have been true and correct in all material respects
as of the date of this Agreement and shall be true and correct in all material respects on and as of the Closing Date with the same force
and effect as if made on and as of such date (except to the extent such representations and warranties are specifically made as of a
particular date, in which case such representations and warranties shall be true and correct in all material respects as of such date).
The representations and warranties of the Company contained in this Agreement (other than the Company Fundamental Representations) shall
have been true and correct as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the same
force and effect as if made on and as of the Closing Date except (a) in each case, or in the aggregate, where the failure to be so true
and correct would not reasonably be expected to have a Company Material Adverse Effect (without giving effect to any references therein
to any Company Material Adverse Effect or other materiality qualifications), or (b) for those representations and warranties which address
matters only as of a particular date (which representations shall have been true and correct, subject to the qualifications as set forth
in the preceding clause (a), as of such particular date) (it being understood that, for purposes of determining the accuracy of such
representations and warranties, any update of or modification to the Company Disclosure Schedule made or purported to have been made
after the date of this Agreement shall be disregarded).
7.2
Performance of Covenants. The Company shall have performed or complied with in all material respects all agreements and covenants
required to be performed or complied with by it under this Agreement at or prior to the Effective Time.
7.3
Documents. Parent shall have received the following documents, each of which shall be in full force and effect:
(a)
a certificate executed by the Chief Executive Officer or Chief Financial Officer of the Company certifying (i) that the conditions set
forth in Sections 7.1, 7.2, 7.5 and 7.6 have been duly satisfied and (ii) that the information set forth
in the Allocation Certificate delivered by the Company in accordance with Section 5.15 is true and accurate in all respects as
of the Closing Date; and
(b)
the Allocation Certificate.
7.4
No Company Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any Company Material Adverse
Effect that is continuing.
7.5
Termination of Investor Agreements. The Investor Agreements shall have been terminated (or will be terminated as of the Closing).
7.6
Company Lock-Up Agreements. Parent shall have received the Company Lock-Up Agreements duly executed by each of the Company Lock-Up
Signatories and each executive officer and director of the Company who is elected or appointed, as applicable, as an executive officer
and director of Parent as of immediately following the Closing, each of which shall be in full force and effect as of immediately following
the Effective Time.
7.7
Company Stockholder Written Consent. The Company Stockholder Written Consent executed by each Company Signatory shall be in full
force and effect.
7.8
Appraisal Shares. The holders of no more than 5% of shares of Company Capital Stock shall have exercised statutory appraisal rights
pursuant to ABCL Article 13 with respect to such shares of Company Capital Stock.
7.9
FIRPTA Certificate. Parent shall have received (i) an original signed statement from the Company that the Company is not, and
has not been at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real
property holding corporation,” as defined in Section 897(c)(2) of the Code, conforming to the requirements of Treasury Regulations
Section 1.1445-2(c)(3) and 1.897-2(h), and (ii) an original signed notice from the Company to be delivered to the IRS in accordance with
the provisions of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Parent to deliver such notice to
the IRS on behalf of the Company following the Closing, each dated as of the Closing Date, duly executed by an authorized officer of
the Company, and in form and substance reasonably acceptable to Parent.
7.10
Company Notes. The holders of the Company Notes, other than any Company Note held by the Parent, shall have elected to convert
the Company Notes into Company Common Stock prior to the Effective Time.
SECTION
8. ADDITIONAL CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY
The
obligations of the Company to effect the Merger and otherwise consummate the Contemplated Transactions to be consummated at the Closing
are subject to the satisfaction or the written waiver by the Company, at or prior to the Closing, of each of the following conditions:
8.1
Accuracy of Representations. The Parent Fundamental Representations shall have been true and correct in all material respects
as of the date of this Agreement and shall be true and correct in all material respects on and as of the Closing Date with the same force
and effect as if made on and as of such date (except to the extent such representations and warranties are specifically made as of a
particular date, in which case such representations and warranties shall be true and correct in all material respects as of such date).
The representations and warranties of Parent and Merger Sub contained in this Agreement (other than the Parent Fundamental Representations)
shall have been true and correct as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the
same force and effect as if made on and as of the Closing Date except (a) in each case, or in the aggregate, where the failure to be
so true and correct would not reasonably be expected to have a Parent Material Adverse Effect (without giving effect to any references
therein to any Parent Material Adverse Effect or other materiality qualifications), or (b) for those representations and warranties which
address matters only as of a particular date (which representations shall have been true and correct, subject to the qualifications as
set forth in the preceding clause (a), as of such particular date) (it being understood that, for purposes of determining the accuracy
of such representations and warranties, any update of or modification to the Parent Disclosure Schedule made or purported to have been
made after the date of this Agreement shall be disregarded).
8.2
Performance of Covenants. Parent and Merger Sub shall have performed or complied with in all material respects all of their agreements
and covenants required to be performed or complied with by each of them under this Agreement at or prior to the Effective Time.
8.3
Documents. The Company shall have received the following documents, each of which shall be in full force and effect:
(a)
a certificate executed by the Chief Executive Officer or Chief Financial Officer of Parent certifying that the conditions set forth in
Sections 8.1, 8.2, and 8.4 have been duly satisfied;
(b)
the Parent Outstanding Shares Certificate; and
(c)
a written resignation, in a form reasonably satisfactory to the Company, dated as of the Closing Date and effective as of the Closing,
executed by each of the directors of Parent who are not to continue as directors of Parent after the Closing pursuant to Section 5.11
hereof.
8.4
No Parent Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any Parent Material Adverse
Effect that is continuing.
8.5
Termination of Contracts. The Company shall have received evidence, in form and substance reasonably satisfactory to it, that
the Specified Parent Contracts have been (a) terminated, assigned, or fully performed by Parent and (b) all obligations of Parent thereunder
have been fully satisfied, waived or otherwise discharged.
8.6
Parent Lock-Up Agreements. The Parent Lock-Up Agreements will continue to be in full force and effect immediately following the
Effective Time.
8.7
Actual Closing Price and Post-Merger Warrants. (a) The Actual Closing Price of a share of the Parent Common Stock must not be
less than the Minimum Share Price and (b) Juvenescence must hold at least 1,133,308 Post-Merger Warrants upon the Parent’s issuance
of the Post-Merger Warrants.
8.8
Cash at Closing. Immediately prior to the Closing, Parent must have on hand at least $500,000 (USD) of immediately spendable nonrestricted
cash, net of all payables and other Liabilities (for the avoidance of doubt, such payables and Liabilities shall include Transaction
Expenses).
SECTION
9. TERMINATION
9.1
Termination. This Agreement may be terminated prior to the Effective Time (whether before or after approval of the Company Stockholder
Matters by the Company’s stockholders and whether before or after approval of the Parent Stockholder Matters by Parent’s
stockholders, unless otherwise specified below):
(a)
by mutual written consent of Parent and the Company;
(b)
by either Parent or the Company if the Contemplated Transactions shall not have been consummated by February 29, 2024 (subject to possible
extension as provided in this Section 9.1(b), the “End Date”); provided, however, that the
right to terminate this Agreement under this Section 9.1(b) shall not be available to the Company, on the one hand, or to Parent,
on the other hand, if such Party’s (or, in the case of Parent, Merger Sub’s) action or failure to act has been a principal
cause of the failure of the Contemplated Transactions to occur on or before the End Date and such action or failure to act constitutes
a breach of this Agreement, provided, further, however, that, in the event that a request for additional information
has been made by any Governmental Body, or in the event that the SEC has not declared the Registration Statement effective under the
Securities Act by the date which is thirty (30) calendar days prior to the End Date, then Parent shall be entitled to extend the End
Date for an additional sixty (60) calendar days by written notice to the Company;
(c)
by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable
order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting
the Contemplated Transactions;
(d)
by Parent if the Company Stockholder Written Consent shall not have been obtained within three (3) Business Days of the Registration
Statement becoming effective in accordance with the provisions of the Securities Act; provided, however, that once
the Company Stockholder Written Consent has been obtained, Parent may not terminate this Agreement pursuant to this Section 9.1(d);
(e)
by either Parent or the Company if (i) the Parent Stockholders’ Meeting (including any adjournments and postponements thereof)
shall have been held and completed and Parent’s stockholders shall have taken a final vote on the Parent Stockholder Matters and
(ii) the Parent Stockholder Matters shall not have been approved at the Parent Stockholders’ Meeting (or at any adjournment or
postponement thereof) by the Required Parent Stockholder Vote; provided, however, that the right to terminate this
Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder
Vote shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach
by Parent of this Agreement;
(f)
by the Company (at any time prior to the approval of the Parent Stockholder Matters by the Required Parent Stockholder Vote) if a Parent
Triggering Event shall have occurred;
(g)
by Parent (at any time prior to the Required Company Stockholder Vote being obtained) if a Company Triggering Event shall have occurred;
(h)
by the Company, upon a breach of any representation, warranty, covenant, or agreement set forth in this Agreement by Parent or Merger
Sub or if any representation or warranty of Parent or Merger Sub shall have become inaccurate, in either case, such that the conditions
set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation
or warranty shall have become inaccurate; provided, that the Company is not then in material breach of any representation,
warranty, covenant or agreement under this Agreement; provided, further, that if such inaccuracy in Parent’s
or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by the End Date by Parent or Merger
Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy
until the earlier of (i) the End Date and (ii) the expiration of a thirty (30) calendar day period commencing upon delivery of written
notice from the Company to Parent or Merger Sub of such breach or inaccuracy and its intention to terminate pursuant to this Section
9.1(h) (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular
breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective);
(i)
by Parent, upon a breach of any representation, warranty, covenant, or agreement set forth in this Agreement by the Company or if any
representation or warranty of the Company shall have become inaccurate, in either case, such that the conditions set forth in Section
7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty
shall have become inaccurate; provided, that Parent is not then in material breach of any representation, warranty, covenant
or agreement under this Agreement; provided, further, that if such inaccuracy in the Company’s representations
and warranties or breach by the Company is curable by the End Date by the Company then this Agreement shall not terminate pursuant to
this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the End Date and (ii) the expiration
of a thirty (30) calendar day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy
and its intention to terminate pursuant to this Section 9.1(i) (it being understood that this Agreement shall not terminate pursuant
to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such
termination becoming effective);
(j)
by Parent, at any time prior to the approval of the Parent Stockholder Matters by the Required Parent Stockholder Vote, if (i) Parent
has received a Superior Offer, (ii) Parent has complied with its obligations under Section 4.4 and Section 5.3(d), (iii)
the Parent Board shall have determined in good faith, after consultation with its outside legal counsel, that the failure to terminate
this Agreement would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (iv) Parent concurrently
terminates this Agreement and enters into a Permitted Alternative Agreement with respect to such Superior Offer and (v) Parent concurrently
pays to the Company the amount contemplated by Section 9.3(b)(ii);
(k)
by Parent, if the Company Audited Financial Statements have not been provided by the Company to Parent in accordance with Section
5.16(i); or
(l)
by Company, if the condition set forth in Section 8.7(a) is not satisfied and is not, to the extent permitted by applicable Law,
waived by the Company at or prior to the Closing; provided, however, that if the Company exercises its termination rights
under this Section 9.1(l) then the Company shall provide the Parent with written notice five (5) days prior to such termination
and the Parent shall have the option, but not the obligation, to, within five (5) business days of receipt by the Parent of that written
notice, provide the Company with a written offer to adjust the Exchange Ratio such that additional Parent Common Stock shall be issued
to the stockholders of the Company in the amount necessary to equal the Target Merger Consideration Minimum Value, and if the Parent
provides that written offer, the Company may not exercise its termination rights under this Section 9.1(l) and the condition set
forth in Section 8.7(a) shall be deemed to have been satisfied.
(m)
by Company, if the condition set forth in Section 8.7(b) is not satisfied and is not, to the extent permitted by applicable Law,
waived by the Company at or prior to the Closing; provided, however, that if the Company exercises its termination rights
under this Section 9.1(m) then the Company shall provide the Parent with written notice five (5) days prior to such termination
and the Parent shall have the option, but not the obligation, to, within five (5) business days of receipt by the Parent of that written
notice, to provide a sufficient number of additional holders of Post-Merger Warrants who have agreed to, and are bound by, the Side Letter
such that the aggregate number of Post-Merger Warrants subject to the Side letter is at least 1,133,308, and if the Parent provides the
said additional Post-Merger Warrant holders to be bound by the Side Letter, then the Company may not exercise its termination rights
under this Section 9.1(m) and the condition set forth in Section 8.7(b) shall be deemed to have been satisfied.
(n)
by Company, if the condition set forth in Section 8.8 is not satisfied and is not, to the extent permitted by applicable Law,
waived by the Company at or prior to the Closing; provided, however, that if the Company exercises its termination rights
under this Section 9.1(n), then the Company shall provide the Parent with written notice prior to such termination and the Parent
shall have the option, but not the obligation, to, within five (5) business days of receipt by the Parent of that written notice, obtain
sufficient net funds to meet the condition set forth in Section 8.8, and if the Parent obtains such sufficient net funds to meet
the condition set forth in Section 8.8, then the Company may not exercise its termination rights under this Section 9.1(n)
and the condition set forth in Section 8.8 shall be deemed to have been satisfied.
The
Party desiring to terminate this Agreement pursuant to this Section 9.1, shall give the other Party written notice of such termination,
specifying the provisions hereof pursuant to which such termination is made and the basis therefor described in reasonable detail.
9.2
Effect of Termination. In the event of the termination of this Agreement as provided in Section 9.1, this Agreement shall
be of no further force or effect; provided, however, that (a) Section 5.8, this Section 9.2, Section
9.3, Section 10 and the definitions of the defined terms in such Sections (including the definitions of such defined terms
set forth in Exhibit A) shall survive the termination of this Agreement and shall remain in full force and effect, and
(b) the termination of this Agreement and the provisions of Section 9.3 shall not relieve any Party of any liability for intentional
fraud or for any willful and material breach of any representation, warranty, covenant, obligation or other provision contained in this
Agreement.
9.3
Expenses; Termination Fees.
(a)
Except as set forth in this Section 9.3, the Transaction Expenses shall be paid by the Party incurring such expenses, whether
or not the Merger is consummated.
(b)
If:
(i)
(A) this Agreement is terminated by the Company pursuant to Section 9.1(b), Section 9.1(e) or Section 9.1(h), (B)
an Acquisition Proposal with respect to Parent shall have been publicly announced, disclosed or otherwise communicated to Parent or the
Parent Board at any time after the date of this Agreement but prior to the termination of this Agreement (which shall not have been withdrawn)
and (C) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Subsequent
Transaction or consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in clause (B); or
(ii)
(A) this Agreement is terminated by the Company pursuant to Section 9.1(f) (or, at the time this Agreement is terminated, the
Company had the right to terminate this Agreement pursuant to Section 9.1(f)) or (B) this Agreement is terminated by Parent pursuant
to Section 9.1(j),
then
the Parent shall pay to the Company a nonrefundable fee in an amount equal to $1,000,000 (the “Company Termination Fee”)
upon the consummation of such Subsequent Transaction or termination of this Agreement, as applicable, plus any amount payable to the
Company pursuant to Section 9.3(f).
(c)
If:
(i)
(A) this Agreement is terminated by Parent pursuant to Section 9.1(b), Section 9.1(d), or Section 9.1(i), (B) an
Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company
or the Company Board at any time after the date of this Agreement but prior to the termination of this Agreement (which shall not have
been withdrawn) and (C) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement
with respect to a Subsequent Transaction or consummates a Subsequent Transaction in respect of the Acquisition Proposal referred to in
clause (B); or
(ii)
this Agreement is terminated by Parent pursuant to Section 9.1(g) (or, at the time this Agreement is terminated, Parent had the
right to terminate this Agreement pursuant to Section 9.1(g)),
then
the Company shall pay to Parent a nonrefundable fee in an amount equal to $1,000,000 (the “Parent Termination Fee”)
upon the consummation of such Subsequent Transaction or termination of this Agreement, as applicable, plus any amount payable to Parent
pursuant to Section 9.3(f).
(d)
(i) If this Agreement is terminated by the Company pursuant to Section 9.1(h) or (ii) in the event of the failure of the Company
to consummate the transactions to be contemplated at the Closing solely as a result of a Parent Material Adverse Effect as set forth
in Section 8.4 (provided, that at such time all of the other conditions precedent to Parent’s obligation to close
set forth in Section 6 and Section 7 have been satisfied by the Company, are capable of being satisfied by the Company
or have been waived by Parent), then Parent shall reimburse the Company for all reasonable out-of-pocket fees and expenses incurred by
the Company in connection with this Agreement and the Contemplated Transactions (such expenses, collectively, the “Third Party
Expenses”), up to a maximum of $1,000,000, by wire transfer of same-day funds within ten (10) Business Days following the date
on which the Company submits to Parent true and correct copies of reasonable documentation supporting such Third Party Expenses;
provided, however, that such Third Party Expenses shall not include (i) any amounts paid to Juvenescence or any Affiliate
thereof, or (ii) any amounts for financial advisors to the Company except for reasonably documented out-of-pocket expenses otherwise
reimbursable by the Company to such financial advisors pursuant to the terms of the Company’s engagement letter or similar arrangement
with such financial advisors.
(e)
(i) If this Agreement is terminated by Parent pursuant to Section 9.1(i) or (ii) in the event of the failure of Parent to consummate
the transactions to be consummated to the Closing solely as a result of a Company Material Adverse Effect as set forth in Section
7.5 (provided, that at such time all of the other conditions precedent to the Company’s obligation to close set forth
in Section 6 and Section 8 have been satisfied by Parent are capable of being satisfied by Parent or have been waived by
the Company), the Company shall reimburse Parent for all Third Party Expenses incurred by Parent up to a maximum of $1,000,000, by wire
transfer of same-day funds within ten (10) Business Days following the date on which Parent submits to the Company true and correct copies
of reasonable documentation supporting such Third Party Expenses; provided, however, that such Third Party Expenses
shall not include (i) any amounts paid to Juvenescence or any Affiliate thereof, or (ii) any amounts for financial advisors to Parent
except for reasonably documented out-of-pocket expenses otherwise reimbursable by Parent to such financial advisors pursuant to the terms
of Parent’s engagement letter or similar arrangement with such financial advisors.
(f)
The Company agrees it shall be entitled only to a Company Termination Fee or the reimbursement of Third Party Expenses, but not both,
and the Parent agrees that it shall be entitled only to a Parent Termination Fee or the reimbursement of Third Party Expenses, but not
both. Any Company Termination Fee, Parent Termination Fee, or Third Party Expenses due under this Section 9.3 shall be paid by
wire transfer of same day funds. If a Party fails to pay when due any amount payable by it under this Section 9.3, then (i) such
Party shall reimburse the other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred
in connection with the collection of such overdue amount and the enforcement by the other Party of its rights under this Section 9.3,
and (ii) such Party shall pay to the other Party interest on such overdue amount (for the period commencing as of the date such overdue
amount was originally required to be paid and ending on the date such overdue amount is actually paid to other Party in full) at a rate
per annum equal to the “prime rate” (as published in The Wall Street Journal or any successor thereto) in effect on
the date such overdue amount was originally required to be paid plus three percent (3%).
(g)
The Parties agree that, subject to Section 9.2, (i) payment of the Company Termination Fee or Third Party Expenses, as the case
may be, shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive
remedy of the Company following the termination of this Agreement under the circumstances described in Section 9.3(b), it being
understood that in no event shall Parent be required to pay the amounts payable pursuant to this Section 9.3 on more than one
occasion and (ii) following payment of the Company Termination Fee or Third Party Expenses, as the case may be, (x) Parent shall have
no further liability to the Company in connection with or arising out of this Agreement or the termination thereof, any breach of this
Agreement by Parent giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither the
Company nor any of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against Parent or Merger
Sub or seek to obtain any recovery, judgment or damages of any kind against such Parties (or any partner, member, stockholder, director,
officer, employee, Subsidiary, Affiliate, agent or other Representative of such Parties) in connection with or arising out of this Agreement
or the termination thereof, any breach by any such Parties giving rise to such termination or the failure of the Contemplated Transactions
to be consummated and (z) the Company and its Affiliates shall be precluded from any other remedy against Parent, Merger Sub and their
respective Affiliates, at law or in equity or otherwise, in connection with or arising out of this Agreement or the termination thereof,
any breach by such Party giving rise to such termination or the failure of the Contemplated Transactions to be consummated; provided,
however, that nothing in this Section 9.3(g) shall limit the rights of Parent and Merger Sub under Section 10.11.
(h)
The Parties agree that, subject to Section 9.2, (i) payment of the Parent Termination Fee or Third Party Expenses, as the case
may be, shall, in the circumstances in which it is owed in accordance with the terms of this Agreement, constitute the sole and exclusive
remedy of Parent following the termination of this Agreement under the circumstances described in Section 9.3(c), it being understood
that in no event shall the Company be required to pay the amounts payable pursuant to this Section 9.3 on more than one occasion
and (ii) following payment of the Parent Termination Fee or Third Party Expenses, as the case may be, (x) the Company shall have no further
liability to Parent in connection with or arising out of this Agreement or the termination thereof, any breach of this Agreement by the
Company giving rise to such termination, or the failure of the Contemplated Transactions to be consummated, (y) neither Parent nor any
of its Affiliates shall be entitled to bring or maintain any other claim, action or proceeding against the Company or seek to obtain
any recovery, judgment or damages of any kind against the Company (or any partner, member, stockholder, director, officer, employee,
Subsidiary, Affiliate, agent or other Representative of the Company) in connection with or arising out of this Agreement or the termination
thereof, any breach by the Company giving rise to such termination or the failure of the Contemplated Transactions to be consummated
and (z) Parent and its Affiliates shall be precluded from any other remedy against the Company and its Affiliates, at law or in equity
or otherwise, in connection with or arising out of this Agreement or the termination thereof, any breach by such Party giving rise to
such termination or the failure of the Contemplated Transactions to be consummated; provided, however, that nothing
in this Section 9.3(h) shall limit the rights of the Company under Section 10.11.
(i)
Each of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Contemplated
Transactions, (ii) without these agreements, the Parties would not enter into this Agreement and (iii) any amount payable pursuant to
this Section 9.3 is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate the applicable
Party in the circumstances in which such amount is payable.
SECTION
10. MISCELLANEOUS PROVISIONS
10.1
Non-Survival of Representations and Warranties. The representations and warranties of the Company, Parent and Merger Sub contained
in this Agreement or any certificate or instrument delivered pursuant to this Agreement shall terminate at the Effective Time, and only
the covenants that by their terms survive the Effective Time and this Section 10 shall survive the Effective Time.
10.2
Amendment. This Agreement may be amended with the approval of the respective boards of directors of the Company, Merger Sub and
Parent at any time (whether before or after obtaining the Required Company Stockholder Vote or before or after obtaining the Required
Parent Stockholder Vote); provided, however, that after any such approval of this Agreement by a Party’s stockholders,
no amendment shall be made which by Law requires further approval of such stockholders without the further approval of such stockholders.
This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Company, Merger Sub and Parent.
10.3
Waiver.
(a)
No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part
of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right,
privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or
further exercise thereof or of any other power, right, privilege or remedy.
(b)
No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed
and delivered on behalf of such Party and any such waiver shall not be applicable or have any effect except in the specific instance
in which it is given.
10.4
Entire Agreement; Counterparts; Exchanges by Electronic Transmission. This Agreement, the Company Disclosure Schedule,
the Parent Disclosure Schedule and the other agreements referred to in this Agreement constitute the entire agreement and supersede all
prior agreements and understandings, both written and oral, among or between any of the Parties with respect to the subject matter hereof
and thereof; provided, however, that the Confidentiality Agreement shall not be superseded and shall remain in full
force and effect in accordance with its terms. This Agreement may be executed in several counterparts, each of which shall be deemed
an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts
or otherwise) by all Parties by electronic transmission in .PDF format shall be sufficient to bind the Parties to the terms and conditions
of this Agreement.
10.5
Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of the State
of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of laws. In any action or proceeding
between any of the Parties arising out of or relating to this Agreement or any of the Contemplated Transactions, each of the Parties:
(a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State
of Delaware or, to the extent such court does not have subject matter jurisdiction, the United States District Court for the District
of Delaware or, to the extent that neither of the foregoing courts has jurisdiction, the Superior Court of the State of Delaware;
(b) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in accordance with clause
(a) of this Section 10.5; (c) waives any objection to laying venue in any such action or proceeding in such courts;
(d) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any Party; (e) agrees that
service of process upon such Party in any such action or proceeding shall be effective if notice is given in accordance with Section
10.8 of this Agreement; and (f) irrevocably and unconditionally waives the right to trial by jury. Notwithstanding the foregoing,
all matters relating to the fiduciary obligations of the Company Board and the internal affairs of the Company or the Company Board (including,
without limitation, the interpretation of the Company’s Organizational Documents and the ABCL) shall be governed by and construed
in accordance with the Laws of Alabama without regard to the conflicts of law principles thereof to the extent that such principles would
direct a matter to another jurisdiction.
10.6
Attorneys’ Fees. In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the
prevailing Party in such action or suit (as determined by a court of competent jurisdiction) shall be entitled to recover its reasonable
out-of-pocket attorneys’ fees and all other reasonable costs and expenses incurred in such action or suit.
10.7
Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties
and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of a
Party’s rights or obligations hereunder may be assigned or delegated by such Party without the prior written consent of the other
Party, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such Party without the other
Party’s prior written consent shall be void and of no effect.
10.8
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly delivered and
received hereunder (a) one (1) Business Day after being sent for the next Business Day delivery, fees prepaid, via a reputable international
overnight courier service, (b) upon delivery in the case of delivery by hand, or (c) on the date delivered in the place of delivery if
sent by email (with a written or electronic confirmation of delivery) prior to 5:00 p.m. New York time, otherwise on the next succeeding
Business Day, in each case to the intended recipient as set forth below:
if
to Parent or Merger Sub:
AgeX
Therapeutics, Inc.
1101
Marina Village Parkway, Suite 201
Alameda,
California 94501
Attention:
Chief Financial Officer
with
a copy to (which shall not constitute notice):
Gibson,
Dunn & Crutcher LLP
555
Mission Street
San
Francisco, California 94105-0921
| |
Attention: |
Robert
Phillips |
| |
|
Chris
Trester |
Email:
if
to the Company:
Serina
Therapeutics, Inc.
601
Genome Way, Suite 2001
Huntsville,
Alabama 35806
Attention:
Steve Ledger
Email:
with
a copy to (which shall not constitute notice):
Bradley
Arant Boult Cummings LLP
200
Clinton Avenue, Suite 900
Huntsville,
Alabama 35801
Attention:
Scott E. Ludwig
Email:
10.9
Cooperation. Each Party agrees to cooperate fully with the other Party and to execute and deliver such further documents, certificates,
agreements and instruments and to take such other actions as may be reasonably requested by the other Party to evidence or reflect the
Contemplated Transactions and to carry out the intent and purposes of this Agreement.
10.10
Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall
not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of
the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction
declares that any term or provision of this Agreement is invalid or unenforceable, the Parties agree that the court making such determination
shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a
term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term
or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted
to it in the prior sentence, the Parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable
term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable
term or provision.
10.11
Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred
upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party,
and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable
damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that any Party does not
perform the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate this Agreement)
in accordance with their specified terms or otherwise breaches such provisions. Accordingly, the Parties acknowledge and agree that the
Parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any court of the United States or any state thereof having jurisdiction, in
addition to any other remedy to which they are entitled at law or in equity. Each of the Parties agrees that it will not oppose the granting
of an injunction, specific performance or other equitable relief on the basis that any other Party has an adequate remedy at law or that
any award of specific performance is not an appropriate remedy for any reason at law or in equity. Any Party seeking an injunction or
injunctions to prevent breaches of this Agreement shall not be required to provide any bond, surety or other security in connection with
any such order or injunction.
10.12
No Third Party Beneficiaries. Other than (a) the Parties and the D&O Indemnified Parties to the extent of their respective
rights pursuant to Section 5.6 and (b) Juvenescence to the extent of its rights pursuant to Sections 5.11 and 6.5, nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
10.13
Construction.
(a)
References to “cash,” “dollars” or “$” are to U.S. dollars.
(b)
For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders;
and the neuter gender shall include masculine and feminine genders.
(c)
The Parties have participated jointly in the negotiating and drafting of this Agreement and agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this
Agreement, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision
of this Agreement.
(d)
As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to
be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
(e)
Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits” and “Schedules”
are intended to refer to Sections of this Agreement and Exhibits and Schedules to this Agreement, respectively.
(f)
Any reference to legislation or to any provision of any legislation shall include any modification, amendment, re- enactment thereof,
any legislative provision substituted therefore and all rules, regulations, and statutory instruments issued or related to such legislations.
(g)
The bold-faced headings and table of contents contained in this Agreement are for convenience of reference only, shall not be deemed
to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
(h)
The Parties agree that each of the Company Disclosure Schedule and the Parent Disclosure Schedule shall be arranged in sections and subsections
corresponding to the numbered and lettered sections and subsections contained in this Agreement. The disclosures in any section or subsection
of the Company Disclosure Schedule or the Parent Disclosure Schedule shall qualify other sections and subsections in this Agreement to
the extent it is readily apparent on its face from a reading of the disclosure that such disclosure is applicable to such other sections
and subsections.
(i)
Each of “delivered” or “made available” means, with respect to any documentation, that prior to 11:59 p.m. (New
York time) on the date that is two (2) calendar days prior to the date of this Agreement (i) a copy of such material has been posted
to and made available by a Party to the other Party and its Representatives in the electronic data room maintained by such disclosing
Party or (ii) such material is disclosed in the Parent SEC Documents filed with the SEC prior to the date hereof and publicly made available
on the SEC’s Electronic Data Gathering Analysis and Retrieval system.
(j)
Whenever the last day for the exercise of any privilege or the discharge of any duty hereunder shall fall upon a Saturday, Sunday, or
any date on which banks in New York, New York are authorized or obligated by Law to be closed, the Party having such privilege or duty
may exercise such privilege or discharge such duty on the next succeeding day which is a regular Business Day.
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
(Remainder
of page intentionally left blank)
AGREEMENT
AND PLAN OF MERGER
AND REORGANIZATION
(Signature
Page for AgeX Therapeutics, Inc. and Merger Sub)
| |
AgeX
Therapeutics, Inc. |
| |
|
|
| |
By: |
/s/
Joanne Hackett, Ph.D. |
| |
|
|
| |
Name: |
Joanne
Hackett, Ph.D. |
| |
Title: |
Interim
Chief Executive Officer |
| |
|
|
| |
CANARIA
TRANSACTION CORPORATION |
| |
|
|
| |
By: |
/s/
Joanne Hackett, Ph.D. |
| |
|
|
| |
Name: |
Joanne
Hackett, Ph.D. |
| |
Title: |
Director
and Secretary |
[Signature
Page to Agreement and Plan of Merger and Reorganization]
AGREEMENT
AND PLAN OF MERGER
AND REORGANIZATION
(Signature
Page for Serina Therapeutics, Inc.)
| |
SERINA
THERAPEUTICS, INC. |
| |
|
|
| |
By: |
/s/
Randall Moreadith |
| |
|
Randall
Moreadith, its President and Chief Executive Officer |
[Signature
Page to Agreement and Plan of Merger and Reorganization]
EXHIBIT
A
CERTAIN
DEFINITIONS
For
purposes of this Agreement (including this Exhibit A):
“ABCL”
means the Alabama Business Corporation Law.
“Acquisition
Inquiry” means, with respect to a Party, an inquiry, indication of interest or request for information (other than an inquiry,
an indication of interest or request for information made or submitted by the Company, on the one hand, or Parent, on the other hand,
to the other Party) that could reasonably be expected to lead to an Acquisition Proposal; provided, however, that
the term “Acquisition Inquiry” shall not include the Merger or the other Contemplated Transactions or any transactions
related to the Asset Dispositions.
“Acquisition
Proposal” means, with respect to a Party, any offer or proposal, whether written or oral (other than an offer or proposal made
or submitted by or on behalf of the Company or any of its Affiliates, on the one hand, or by or on behalf of Parent or any of its Affiliates,
on the other hand, to the other Party) contemplating or otherwise relating to any Acquisition Transaction with such Party, other than
the Asset Dispositions.
“Acquisition
Transaction” means any transaction or series of related transactions (other than the Asset Dispositions) involving:
(i)
any merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of securities, reorganization,
recapitalization, tender offer, exchange offer or other similar transaction: (i) in which a Party is a constituent entity; (ii)
in which a Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) of Persons directly or
indirectly acquires beneficial or record ownership of securities representing more than 20% of the outstanding securities of any class
of voting securities of a Party or any of its Subsidiaries; or (iii) in which a Party or any of its Subsidiaries issues securities
representing more than 20% of the outstanding securities of any class of voting securities of such Party or any of its Subsidiaries;
or
(ii)
any sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or assets that constitute or account
for 20% or more of the consolidated book value or the fair market value of the assets of a Party and its Subsidiaries, taken as a whole.
“Actual
Closing Price” means the volume weighted average closing trading price of a share of the Parent Common Stock as reported on
the NYSE for the ten (10) Trading Days preceding the date that is the fifth (5th) business day preceding the Effective Time.
“Affiliate”
of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is
under common control with, such Person. The term “control” (including the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement”
shall have the meaning set forth in the Preamble.
“Allocation
Certificate” shall have the meaning set forth in Section 5.15(a).
“Business
Day” means any day other than a Saturday, Sunday or other day on which banks in New York, New York are authorized or obligated
by Law to be closed.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Company
Associate” means any current or former employee, independent contractor, officer or director of the Company or any of its Subsidiaries.
“Company
Board” means the board of directors of the Company.
“Company
Capital Stock” means the Company Common Stock and the Company Preferred Stock.
“Company
Common Stock” means the Common Stock, $0.01 par value per share, of the Company.
“Company
Contract” means any Contract: (a) to which the Company or any of its Subsidiaries is a party; (b) by which the Company
or any of its Subsidiaries or any Company IP or any other asset of the Company or its Subsidiaries are or may become bound or under which
the Company or any of its Subsidiaries have, or may become subject to, any obligation; or (c) under which the Company or any of
its Subsidiaries have or may acquire any right or interest.
“Company
ERISA Affiliate” means any corporation or trade or business (whether or not incorporated) which is (or at any relevant time
was) treated with the Company or any of its Subsidiaries as a single employer within the meaning of Section 414 of the Code.
“Company
Fundamental Representations” means the representations and warranties of the Company set forth in Sections 2.1 (Due
Organization; Subsidiaries.), 2.3 (Authority; Binding Nature of Agreement), 2.4 (Vote Required), 2.6(a)
and (c) (Capitalization) and 2.20 (No Financial Advisors).
“Company
IP” means all Intellectual Property Rights that are owned or co-owned or purported to be owned or co-owned by the Company or
its Subsidiaries.
“Company
Material Adverse Effect” means any Effect that, considered together with all other Effects, has or would reasonably be expected
to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities or results of operations of
the Company or its Subsidiaries, taken as a whole; provided, however, that Effects arising or resulting from the following
shall not be taken into account in determining whether there has been a Company Material Adverse Effect: (a) general business, political
or economic conditions generally affecting the industry in which the Company and its Subsidiaries operate, (b) acts of war, the outbreak
or escalation of armed hostilities, acts of terrorism, earthquakes, wildfires, hurricanes or other natural disasters, health emergencies,
including pandemics (including COVID-19 and any evolutions or mutations thereof) and related or associated epidemics, disease outbreaks
or quarantine restrictions, (c) changes in financial, banking or securities markets, (d) any change in, or any compliance with or action
taken for the purpose of complying with, any Law or GAAP (or interpretations of any Law or GAAP), (e) the announcement of this Agreement
or the pendency of the Contemplated Transactions, (f) the taking of any action required to be taken by this Agreement, or (g) continued
losses from operations or decreases in cash balances of the Company or any of its Subsidiaries or on a consolidated basis among the Company
and its Subsidiaries; except, in each case, with respect to clauses (a) through (c), to the extent disproportionately affecting
the Company and its Subsidiaries, taken as a whole, relative to other similarly situated companies in the industries in which the Company
and its Subsidiaries operate.
“Company
Notes” means convertible notes or similar instruments that convert into shares of Company Capital Stock issued by the Company.
“Company
Options” means options or other rights to purchase shares of Company Capital Stock issued by the Company pursuant to the Company
Incentive Plan.
“Company
Triggering Event” shall be deemed to have occurred if: (a) the Company Board shall have made a Company Board Adverse Recommendation
Change; (b) the Company Board or any committee thereof shall have publicly approved, endorsed or recommended any Acquisition Proposal;
or (c) the Company shall have entered into any letter of intent or similar document or any Contract relating to any Acquisition Proposal.
“Company
Unaudited Interim Balance Sheet” means the unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries
for the period ended March 31, 2023, provided to Parent prior to the date of this Agreement.
“Company
Warrant” means the warrants to purchase capital stock of the Company listed in Section 2.6(a) of the Company Disclosure
Schedule.
“Company’s
Knowledge” or “Knowledge of the Company” means the actual knowledge of Randall Moreadith, Steve Ledger,
and Tacey Viegas and such knowledge as such Persons would reasonably be expected to have obtained in the ordinary course of their performance
of their employment or consulting duties to the Company or any of its Subsidiaries.
“Confidentiality
Agreement” means the Confidentiality Agreement, dated as of October 20, 2022, between the Company and Parent.
“Consent”
means any approval, consent, ratification, permission, waiver or authorization (including any Governmental Authorization).
“Contemplated
Transactions” means the Merger and the other transactions and actions contemplated by this Agreement, including the NYSE Reverse
Split, the Asset Dispositions, and the Post-Merger Warrants.
“Contract”
means, with respect to any Person, any written agreement, contract, subcontract, lease (whether for real or personal property), mortgage,
license, sublicense or other legally binding commitment or undertaking of any nature to which such Person is a party or by which such
Person or any of its assets are bound or affected under applicable Law.
“COVID-19”
means the novel coronavirus (SARS-CoV-2) and related variants thereof.
“DGCL”
means the General Corporation Law of the State of Delaware.
“Effect”
means any effect, change, event, circumstance or development.
“Encumbrance”
means any lien, pledge, hypothecation, charge, mortgage, security interest, lease, license, option, easement, reservation, servitude,
adverse title, claim, infringement, interference, right of first refusal, preemptive right, community property interest or restriction
or encumbrance of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security
or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any
restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).
“Enforceability
Exceptions” means the (a) Laws of general application relating to bankruptcy, insolvency and the relief of debtors; and
(b) rules of law governing specific performance, injunctive relief and other equitable remedies.
“Entity”
means any corporation (including any non-profit corporation), partnership (including any general partnership, limited partnership or
limited liability partnership), joint venture, estate, trust, company (including any company limited by shares, limited liability company
or joint stock company), firm, society or other enterprise, association, organization or entity, and each of its successors.
“Environmental
Law” means any federal, state, local or foreign Law relating to pollution or protection of human health or the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata), including any Law or regulation relating to emissions,
discharges, releases or threatened releases of Hazardous Materials, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exchange
Ratio” means, subject to Section 1.5(g), the following ratio: the quotient obtained by dividing (a) the Company Merger
Shares by (b) the Company Outstanding Shares, in which:
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“Company
Allocation Percentage” means 75.00%. |
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“Company
Merger Shares” means the product (rounded to the nearest whole share) obtained by multiplying (a) Post-Closing Parent Shares
by (b) the Company Allocation Percentage. |
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“Company
Outstanding Shares” means the total number of shares of Company Capital Stock outstanding immediately prior to the Effective
Time after giving effect to the Preferred Stock Conversion, expressed on a fully-diluted and as-converted to Company Common Stock
basis assuming, without limitation or duplication, (i) the exercise of all Company Options outstanding as of immediately prior to
the Effective Time, (ii) the issuance of shares of Company Capital Stock upon the conversion of all Company Notes (but excluding
any Company Notes issued to Parent) and (iii) the issuance of shares of Company Capital Stock in respect of all other outstanding
options, restricted stock awards, restricted stock units, or rights to receive such shares, whether conditional or unconditional
and including any outstanding options, restricted stock awards, restricted stock units or rights triggered by or associated with
the consummation of the Merger (but excluding any shares of Company Capital Stock reserved for issuance other than with respect to
outstanding Company Options under the Company Incentive Plan as of immediately prior to the Effective Time). No Company Warrants
shall be included in the total number of shares of Company Common Stock outstanding for purposes of determining the Company Outstanding
Shares. |
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“Parent
Outstanding Shares” means, subject to Section 1.5(g) (that addresses, among other things, the NYSE Reverse Split)
and the immediately following sentence, the total number of shares of Parent Common Stock outstanding immediately prior to the Effective
Time expressed on a fully-diluted and as-converted to Parent Common Stock basis and using the treasury stock method (and shall include,
for the avoidance of doubt, all Parent Note Shares, Parent Common Stock to be received upon the conversion of the Parent Preferred
Stock, In the Money Parent Options and Parent Warrants), but assuming, without limitation or duplication, the issuance of shares
of Parent Common Stock in respect of all Parent Options, Parent RSUs, Parent Warrants and other outstanding options, warrants or
rights to receive such shares, in each case, outstanding as of immediately prior to the Effective Time (assuming cashless exercise
using the Parent Closing Price), whether conditional or unconditional and including any outstanding options, warrants or rights triggered
by or associated with the consummation of the Merger (but excluding any shares of Parent Common Stock reserved for issuance other
than with respect to outstanding Parent Options, Parent RSUs and Parent Warrants as of immediately prior to the Effective Time and
as set forth above). No (i) Post-Merger Warrants, or (ii) Incentive Warrants, in each case, shall be included in the total number
of shares of Parent Common Stock outstanding for purposes of determining the Parent Outstanding Shares. |
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“Post-Closing
Parent Shares” means the quotient obtained by dividing (a) the Parent Outstanding Shares by (b)(i) 1.00 minus (ii) the
Company Allocation Percentage. |
“GAAP”
means generally accepted accounting principles and practices in effect from time to time within the United States applied consistently
throughout the period involved.
“Governmental
Authorization” means any: (a) permit, license, certificate, franchise, permission, variance, exception, order, clearance, registration,
qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body
or pursuant to any Law; or (b) right under any Contract with any Governmental Body.
“Governmental
Body” means any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction
of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental authority
of any nature (including any governmental division, department, agency, commission, bureau, instrumentality, official, ministry, fund,
foundation, center, organization, unit, body or Entity and any court or other tribunal, and for the avoidance of doubt, any taxing authority);
or (d) self-regulatory organization (including NYSE).
“Hazardous
Materials” means any pollutant, chemical, substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable
or flammable chemical, or chemical compound, or hazardous substance, material or waste, whether solid, liquid or gas, that is subject
to regulation, control or remediation under any Environmental Law, including without limitation, crude oil or any fraction thereof, and
petroleum products or by-products.
“Incentive
Warrants” means the warrants of Parent, each whole warrant exercisable for one share of Parent Common Stock at a price equal
to 1.5 multiplied by the Minimum Share Price, and expiring on the four year anniversary of the Closing Date, upon the terms and conditions
set forth in the Warrant Agreement.
“Intellectual
Property Rights” means and includes all past, present, and future rights of the following types, which may exist or be created
under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights,
copyrights, moral rights, software, databases, and mask works; (b) trademarks, service marks, trade dress, logos, trade names and
other source identifiers, domain names and URLs and similar rights and any goodwill associated therewith; (c) rights associated
with trade secrets, know how, inventions, invention disclosures, methods, processes, protocols, specifications, techniques and other
forms of technology; (d) patents and industrial property rights; and (e) other similar proprietary rights in intellectual property
of every kind and nature; (f) rights of privacy and publicity; and (g) all registrations, renewals, extensions, statutory invention
registrations, provisionals, continuations, continuations-in-part, divisions, or reissues of, and applications for, any of the rights
referred to in clauses “(a)” through “(f)” above (whether or not in tangible form and including all tangible
embodiments of any of the foregoing, such as samples, studies and summaries), along with all rights to prosecute and perfect the same
through administrative prosecution, registration, recordation or other administrative proceeding, and all causes of action and rights
to sue or seek other remedies arising from or relating to the foregoing.
“In
the Money Parent Options and Parent Warrants” shall mean any Parent Options and Parent Warrants with an exercise price less
than the Parent Closing Price.
“IRS”
means the United States Internal Revenue Service.
“Juvenescence
Note Conversion” means that certain Exchange Agreement entered into by and between Parent and Juvenescence on July 21, 2023,
and closed on July 24, 2023, whereby certain notes totaling $36,000,000 owed to Juvenescence by Parent were converted into 211,600
shares of Parent Series A Preferred Stock and 148,400 shares Parent Series B Preferred Stock.
“Law”
means any federal, state, national, foreign, material local or municipal or other law, statute, constitution, principle of common law,
resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented
or otherwise put into effect by or under the authority of any Governmental Body (including under the authority of NYSE or the Financial
Industry Regulatory Authority).
“Legal
Proceeding” means any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative
or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before,
or otherwise involving, any court or other Governmental Body or any arbitrator or arbitration panel.
“Merger
Sub Board” means the board of directors of Merger Sub.
“Minimum
Share Price” means $12.00.
“NYSE”
means the New York Stock Exchange, including the NYSE American or such other NYSE market on which shares of Parent Common Stock are then
listed.
“NYSE
Reverse Split” means a reverse stock split of all outstanding shares of Parent Common Stock that is effected by Parent for
the purpose of resulting in approximately 2,500,000 shares of Parent Common Stock being outstanding immediately prior to the Effective
Time, unless otherwise mutually agreed to by Parent and the Company.
“Ordinary
Course of Business” means, in the case of each of the Company and Parent, such actions taken in the ordinary course of its
and its Subsidiaries’ normal operations and consistent with its and its Subsidiaries’ past practices; provided,
however, that the Ordinary Course of Business of (a) Parent shall also include actions required to effect the Asset Dispositions
or effect the winding down of Parent’s prior research and development activities (including the termination of ongoing contractual
obligations relating to Parent’s current products or product candidates), and (b) each Party shall also include any actions expressly
required or permitted by this Agreement, including the Contemplated Transactions.
“Organizational
Documents” means, with respect to any Person (other than an individual), (a) the certificate or articles of association or
incorporation or organization or limited partnership or limited liability company, and any joint venture, limited liability company,
operating or partnership agreement and other similar documents adopted or filed in connection with the creation, formation or organization
of such Person and (b) all bylaws, regulations and similar documents or agreements relating to the organization or governance of such
Person, in each case, as amended or supplemented.
“Out
of the Money Parent Options or Parent Warrants” shall mean Parent Options and Parent Warrants with an exercise price equal
to or greater than the Parent Closing Price.
“Pandemic
Response Laws” means the Coronavirus Aid, Relief, and Economic Security Act, the Families First Coronavirus Response Act, the
COVID-related Tax Relief Act of 2020, the Presidential Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19
Disaster (as issued on August 8, 2020, and including any administrative or other guidance published with respect thereto by any Tax authority
(including IRS Notice 2020-65)), and any other similar or additional U.S. federal, state, or local or non-U.S. Law, or administrative
guidance intended to benefit taxpayers in response to the COVID-19 pandemic and associated economic downturn.
“Parent
Associate” means any current or former employee, independent contractor, officer or director of Parent or any of its Subsidiaries.
“Parent
Balance Sheet” means the audited balance sheet of Parent as of December 31, 2022, included in Parent’s Report on Form
10-K for the annual period ended December 31, 2022, as filed with the SEC.
“Parent
Board” means the board of directors of Parent.
“Parent
Change in Circumstance” means a material development or change in circumstances (other than any such event, development or
change to the extent related to (A) any Acquisition Proposal, Acquisition Inquiry or the consequences thereof or (B) the fact, in and
of itself, that Parent meets or exceeds internal budgets, plans or forecasts of its revenues, earnings or other financial performance
or results of operations) that affects the business, assets or operations of Parent that occurs or arises after the date of this Agreement.
“Parent
Closing Price” means the volume weighted average closing trading price of a share of Parent Common Stock on NYSE for the five
(5) consecutive trading days ending three (3) trading days immediately prior to the date of the public announcement of this Agreement.
“Parent
Capital Stock” means the Parent Common Stock and the Parent Preferred Stock.
“Parent
Common Stock” means the Common Stock, $0.0001 par value per share, of Parent.
“Parent
Contract” means any Contract: (a) to which Parent or any of its Subsidiaries is a party; (b) by which Parent or any of
its Subsidiaries or any Parent IP or any other asset of Parent or its Subsidiaries are or may become bound or under which Parent or any
of its Subsidiaries have, or may become subject to, any obligation; or (c) under which Parent or any of its Subsidiaries have or
may acquire any right or interest.
“Parent
ERISA Affiliate” means any corporation or trade or business (whether or not incorporated) which is (or at any relevant time
was) treated with Parent or any of its Subsidiaries as a single employer within the meaning of Section 414 of the Code.
“Parent
Excluded Assets” means the right, title and interest in and to the enumerated assets in Section C of the Parent Disclosure
Schedule.
“Parent
Fundamental Representations” means the representations and warranties of Parent and Merger Sub set forth in Sections 3.1
(Due Organization; Subsidiaries), 3.3 (Authority; Binding Nature of Agreement), 3.4 (Vote Required), 3.6(a)
and (c) (Capitalization) and 3.21 (No Financial Advisors).
“Parent
Incentive Plan” means Parent’s 2017 Equity Incentive Plan.
“Parent
IP” means all Intellectual Property Rights that are owned or co-owned or purported to be owned or co-owned by Parent or its
Subsidiaries.
“Parent
Legacy Note” means any Parent Notes not converted in the Juvenescence Note Conversion.
“Parent
Material Adverse Effect” means any Effect that, considered together with all other Effects, has or would reasonably be expected
to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities or results of operations of
Parent or its Subsidiaries, taken as a whole; provided, however, that Effects arising or resulting from the following
shall not be taken into account in determining whether there has been a Parent Material Adverse Effect: (a) general business, political
or economic conditions generally affecting the industry in which Parent and its Subsidiaries operate, (b) acts of war, the outbreak or
escalation of armed hostilities, acts of terrorism, earthquakes, wildfires, hurricanes or other natural disasters, health emergencies,
including pandemics (including COVID-19 and any evolutions or mutations thereof) and related or associated epidemics, disease outbreaks
or quarantine restrictions, (c) changes in financial, banking or securities markets, (d) any change in the stock price or trading volume
of Parent Common Stock (it being understood, however, that any Effect causing or contributing to any change in stock price or trading
volume of Parent Common Stock may be taken into account in determining whether a Parent Material Adverse Effect has occurred, unless
such Effects are otherwise excepted from this definition), (e) the failure of Parent to meet internal or analysts’ expectations
or projections or the results of operations of Parent, (f) any changes in or affecting clinical trial programs or studies conducted by
or on behalf of Parent or its Subsidiaries, including any adverse data, event or outcome arising out of or related to any such programs
or studies, (g) any change in, or any compliance with or action taken for the purpose of complying with, any Law or GAAP (or interpretations
of any Law or GAAP), (h) the announcement of this Agreement or the pendency of the Contemplated Transactions, (i) the Asset Dispositions,
(j) any reduction in the amount of Parent’s cash and cash equivalents as a result of expenditures made by Parent related to wind
down activities of Parent associated with the termination of its research and development activities (including the termination of ongoing
contractual obligations relating to Parent current products or product candidates), (k) resulting from the taking of any action required
to be taken by this Agreement or (l) as set forth in Section B of the Parent Disclosure Schedule, except in each case, with respect
to clauses (a) through (c), to the extent disproportionately affecting Parent and its Subsidiaries, taken as a whole, relative to other
similarly situated companies in the industries in which Parent and its Subsidiaries operate.
“Parent
Notes” means (i) that certain Secured Convertible Promissory Note, dated March 13, 2023, by and between Parent and Juvenescence;
(ii) that certain Secured Convertible Promissory Note, dated February 14, 2022, by and between Parent and Juvenescence; (iii) that certain
Convertible Facility Agreement by and among Parent, Juvenescence, ReCyte Therapeutics, Inc., and Reverse Bioengineering, Inc,
dated March 30, 2020; (iv) that certain Amended and Restated Secured Convertible Promissory Note, dated February 9, 2023, by and between
Parent and Juvenescence, as amended on March 13, 2023, and May 9, 2023; (v) any other indebtedness entered into by and between Parent
and Juvenescence after the date hereof.
“Parent
Note Shares” means any shares of Parent Common Stock that are issued or issuable upon conversion of the Parent Notes (excluding
the Parent Legacy Note).
“Parent
Options” means options or other rights to purchase shares of Parent Common Stock issued by Parent.
“Parent
RSUs” means any restricted stock unit award granted pursuant to the Parent Incentive Plan or otherwise.
“Parent
Triggering Event” shall be deemed to have occurred if: (a) Parent shall have failed to include in the Proxy Statement the Parent
Board Recommendation or shall have made a Parent Board Adverse Recommendation Change; (b) the Parent Board or any committee thereof
shall have approved, endorsed or recommended any Acquisition Proposal; (c) Parent shall have entered into any letter of intent or
similar document or any Contract relating to any Acquisition Proposal (other than a confidentiality agreement permitted pursuant to Section
4.4); or (d) Parent or any director or officer of Parent shall have willfully and intentionally breached the provisions set
forth in Section 4.4 or Section 5.3 of this Agreement.
“Parent
Unit” means the units of Parent, each unit consisting of one share of Parent Common Stock and one Incentive Warrant.
“Parent
Warrants” means the warrants to purchase capital stock of Parent listed in Section 3.6(a) of the Parent Disclosure Schedule.
“Parent’s
Knowledge” or “Knowledge of Parent” means the actual knowledge of the members of the Parent Board and Parent’s
Chief Executive Officer, Chief Financial Officer and Chief Operating Officer and such knowledge as such Persons would reasonably be expected
to have obtained in the ordinary course of their performance of their director or employment duties, as applicable, to Parent or any
of its Subsidiaries.
“Party”
or “Parties” means the Company, Merger Sub and Parent.
“Permitted
Alternative Agreement” means a definitive agreement that contemplates or otherwise relates to an Acquisition Transaction that
constitutes a Superior Offer.
“Permitted
Encumbrance” means: (a) any liens for current Taxes not yet due and payable or for Taxes that are being contested in good faith
and for which adequate reserves have been made on the Company Unaudited Interim Balance Sheet or the Parent Balance Sheet, as applicable;
(b) minor liens that have arisen in the Ordinary Course of Business and that do not (in any case or in the aggregate) materially detract
from the value of the assets or properties subject thereto or materially impair the operations of the Company or any of its Subsidiaries
or Parent or any of its Subsidiaries, as applicable; (c) statutory liens to secure obligations to landlords, lessors or renters
under leases or rental agreements; (d) deposits or pledges made in connection with, or to secure payment of, workers’ compensation,
unemployment insurance or similar programs mandated by Law; (e) non-exclusive licenses of Intellectual Property Rights or options
to such non-exclusive licenses granted by the Company or any of its Subsidiaries or Parent or any of its Subsidiaries, as applicable,
in the Ordinary Course of Business; and (f) statutory liens in favor of carriers, warehousemen, mechanics and materialmen, to secure
claims for labor, materials or supplies.
“Person”
means any individual, Entity or Governmental Body.
“Post-Merger
Warrant” means the warrants of Parent, each whole warrant exercisable for one Parent Unit at a price equal to 1.1 multiplied
by the Minimum Share Price, and expiring on July 31, 2025, upon the terms and conditions set forth in the Warrant Agreement.
“Potentially
Transferable Assets” means the Reverse Bio Business.
“Proxy
Statement” means the definitive proxy statement/prospectus to be sent to Parent’s stockholders in connection with the
Parent Stockholders’ Meeting.
“Reference
Date” means August 14, 2023.
“Registered
IP” means all Intellectual Property Rights that are registered or issued under the authority of any Governmental Body, including
all patents, registered copyrights, registered mask works, and registered trademarks, service marks and trade dress, registered domain
names, and all applications for any of the foregoing.
“Registration
Statement” means the registration statement on Form S-4 (or any other applicable form under the Securities Act to register
Parent Common Stock) to be filed with the SEC by Parent registering the public offering and sale of Parent Common Stock to some or all
holders of Company Capital Stock in the Merger, including all shares of Parent Common Stock to be issued in exchange for all shares of
Company Capital Stock in the Merger, as said registration statement may be amended prior to the time it is declared effective by the
SEC.
“Representatives”
means directors, officers, employees, agents, attorneys, accountants, investment bankers, advisors and representatives.
“Reverse
Bio Business” means the right, title and interest in and to the enumerated assets in Section D of the Parent Disclosure
Schedule to the extent relating exclusively to the business of Reverse Bioengineering, Inc., a wholly-owned subsidiary of Parent, and
the liabilities and obligations arising out of, relating to or otherwise in respect thereof.
“Sarbanes-Oxley
Act” means the Sarbanes-Oxley Act of 2002.
“SEC”
means the United States Securities and Exchange Commission.
“SEC
Document” means any registration statement, proxy statement, form, document, report, notice or other filing filed by a Person
or any Subsidiary of a Person with the SEC pursuant to the securities Laws.
“Securities
Act” means the Securities Act of 1933, as amended.
“Subsequent
Transaction” means any Acquisition Transaction (with all references to 20% in the definition of Acquisition Transaction being
treated as references to 50% for these purposes).
“Subsidiary”
means, an Entity of a Person that such Person directly or indirectly owns or purports to own, beneficially or of record, (a) a number
of voting securities or other interests in such Entity that is sufficient to enable such Person to elect at least a majority of the members
of such Entity’s board of directors or other governing body, or (b) at least 50% of the outstanding equity, voting, beneficial
or financial interests in such Entity.
“Superior
Offer” means an unsolicited bona fide written Acquisition Proposal (with all references to 20% in the definition of Acquisition
Transaction being treated as references to greater than 50% for these purposes) that: (a) was not obtained or made as a direct or indirect
result of a breach of (or in violation of) this Agreement; and (b) is on terms and conditions that the Parent Board determines in
good faith, based on such matters that it deems relevant (including the likelihood of consummation thereof and the financing terms thereof),
as well as any written offer by the other Party to this Agreement to amend the terms of this Agreement, and following consultation with
its outside legal counsel and outside financial advisors, if any, are more favorable, from a financial point of view, to Parent’s
stockholders than the terms of the Contemplated Transactions and is not subject to any financing condition (and if financing is required,
such financing is then fully committed to the third party).
“Target
Merger Consideration Minimum Value” means an amount equal to the Minimum Share Price multiplied by the anticipated aggregate
number (approximately 7,500,000) of shares of Parent Common Stock to be issued (prior to any adjustment that may be made under Section
9.1(l)) to the Company stockholders.
“Takeover
Statute” means any “fair price,” “moratorium,” “control share acquisition” or other similar
anti-takeover Law.
“Tax”
means any federal, state, local, foreign or other tax, including any income, capital gain, gross receipts, capital stock, profits, transfer,
estimated, registration, stamp, premium, escheat, unclaimed property, customs duty, ad valorem, occupancy, occupation, alternative, add-
on, windfall profits, value added, severance, property, business, production, sales, use, license, excise, franchise, employment, payroll,
social security, disability, unemployment, workers’ compensation, national health insurance, withholding and any escheat or unclaimed
property obligations, or other taxes, duties, fees, assessments or governmental charges, surtaxes or deficiencies thereof in the nature
of a tax, whether or not disputed and however denominated, and including any fine, penalty, addition to tax or interest imposed by a
Governmental Body with respect thereto.
“Tax
Return” means any return (including any information return), report, statement, declaration, estimate, schedule, notice, notification,
form, election, certificate or other document or information, and any amendment or supplement to any of the foregoing, filed with or
submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Law relating
to any Tax.
“Trading
Day” means any day on which the NYSE is open for trading; provided, that a “Trading Day” includes only those
days that have a scheduled closing time of 4:00 p.m. (Eastern Time).
“Transaction
Expenses” means, with respect to each Party, all fees and expenses incurred by such Party at or prior to the Effective Time
in connection with the Contemplated Transactions and this Agreement, including (a) any fees and expenses of legal counsel and accountants
and the maximum amount of fees and expenses payable to financial advisors, investment bankers, brokers, consultants, and other advisors
of such Party in connection with the negotiation, preparation and execution of this Agreement and the consummation of the Contemplated
Transactions (including in connection with any stockholder litigation relating to this Agreement or any of the Contemplated Transactions),
including finders’ fees; (b) only with respect to Parent, fees paid to the SEC in connection with filing the Registration
Statement, the Proxy Statement, and any amendments and supplements thereto, with the SEC; (c) only with respect to Parent, any fees
and expenses in connection with the printing, mailing and distribution of the Registration Statement and any amendments and supplements
thereto; (d) 50% of the fees and expenses payable to NYSE in connection with the NYSE Listing Application; (e) any bonus, severance,
change-in-control or retention payments or similar payment obligations (including payments with “single-trigger” provisions
triggered at and as of the Closing) that become due or payable to any director, officer, employee or consultant of such Party or any
of its Subsidiaries in connection with the consummation of the Contemplated Transactions; (f) only with respect to Parent, any fees
and expenses in connection with the D&O tail policy described in Section 5.6(d); (g) only with respect to Parent, any
notice payments, change-of-control payments, fines or other payments to be made by Parent in connection with terminating any existing
Contract to which Parent is a party or winding down any of Parent’s clinical trial obligations; and (i) only with respect
to Parent, any wind-down costs of Parent associated with discontinued lab, research and development and related operations.
“Treasury
Regulations” means the United States Treasury regulations promulgated under the Code.
Exhibit 10.1
SUPPORT
AGREEMENT
This
Support Agreement (this “Agreement”), is made as of August
__, 2023, by and between Serina Therapeutics, Inc., an Alabama corporation (the
“Company”), and the Person set forth on Schedule A hereto (the “Stockholder”).
WHEREAS,
as of the date hereof, the Stockholder is the holder of the number of shares of common stock, par value $0.0001 per share, Series A Preferred
Stock, par value $0.0001 per share, and Series B Preferred Stock, par value $0.0001 per share (collectively, the “Parent
Shares”), of AgeX Therapeutics, Inc., a Delaware corporation (“Parent”),
set forth opposite the Stockholder’s name on Schedule A (all Parent Shares owned by the Stockholder, or hereafter issued
to or otherwise acquired, whether beneficially or of record, or owned by the Stockholder prior to the termination of this Agreement,
as well as shares set forth on Schedule A, being referred to herein as the “Subject Shares”);
WHEREAS,
the Company, Parent and Canaria Transaction Corporation, an Alabama corporation
and wholly owned subsidiary of Parent (“Merger Sub”), propose to enter into an Agreement and Plan of Merger
and Reorganization (the “Merger Agreement”), which provides, among other things, for the merger of Merger Sub
with and into the Company, with the Company continuing as the surviving company (the “Merger”), upon the terms
and subject to the conditions set forth in the Merger Agreement (capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Merger Agreement); and
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, the Company has required that the Stockholder, and as an inducement
and in consideration therefor, the Stockholder (in the Stockholder’s capacity as a holder of the Subject Shares) has agreed to,
enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below
and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, do hereby agree as follows:
ARTICLE
I
VOTING
AGREEMENT; GRANT OF PROXY
The
Stockholder hereby covenants and agrees that:
1.1.
Voting of Subject Shares. From and after the date hereof, at every meeting of the holders of Parent Shares (the “Parent
Stockholders”), however called, and at every adjournment or postponement thereof (or pursuant to a written consent if the
Parent Stockholders act by written consent in lieu of a meeting), the Stockholder shall, or shall cause the holder of record on any applicable
record date to, be present (in person or by proxy) and to vote or cause to be voted the Subject Shares (a) in favor of adopting the Merger
Agreement and approving the Merger, the other Contemplated Transactions, the Parent Stockholder Matters, and the other actions contemplated
by the Merger Agreement, including, without limitation, the issuance of Parent Common Stock pursuant to the Merger Agreement, (b) against
approval of any proposal made in opposition to, or in competition with, the Merger Agreement or the consummation of the Merger, (c) against
any Acquisition Proposal, and (d) in favor of approving any proposal to permit Juvenescence Limited or any of its direct or indirect
subsidiaries to convert convertible indebtedness of Parent or shares of Parent Series B Preferred Stock or any other series of Parent
convertible preferred stock into shares of Parent Common Stock without regard to the 20% limitation on sales or issuances of listed securities
pursuant to Section 713(a) of the NYSE American Company Guide or any policy of the NYSE American, and to permit a “change of control”
of Parent pursuant to Section 713(b) of the NYSE American Company Guide in connection with any such conversion of indebtedness or Series
B Preferred Stock or other Parent convertible preferred stock into Parent Common Stock. Except as permitted under clauses (A) through
(K) of Section 1.2 below, the Stockholder shall retain at all times the right to vote the Subject Shares in the Stockholder’s
sole discretion and without any other limitation on those matters other than those set forth in this Section 1.1 that are at any
time or from time to time presented for consideration to the Parent Stockholders.
1.2.
No Inconsistent Arrangements. Except as provided hereunder or under the Merger Agreement, prior to Parent obtaining the
Required Parent Stockholder Vote, the Stockholder shall not, directly or indirectly, (a) create any Encumbrance other than restrictions
imposed by Law or pursuant to this Agreement on any Subject Shares; (b) transfer, sell, assign, gift or otherwise dispose of (collectively,
“Transfer”), or enter into any contract with respect to any Transfer of, the Subject Shares or any interest
therein; (c) grant or permit the grant of any proxy, power of attorney or other authorization in or with respect to the Subject Shares;
(d) deposit or permit the deposit of the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect
to the Subject Shares; or (e) take any action that, to the knowledge of the Stockholder, would make any representation or warranty of
the Stockholder herein untrue or incorrect in any material respect or have the effect of preventing the Stockholder from performing the
Stockholder’s obligations hereunder. Any action taken in violation of the foregoing sentence shall be null and void ab initio.
Notwithstanding the foregoing, the Stockholder may (A) Transfer Subject Shares as a bona fide charitable contribution, gift or
donation; (B) Transfer the Subject Shares to any trust for the direct or indirect benefit of the Stockholder or the immediate family
of the Stockholder; (C) Transfer the Subject Shares by will, other testamentary document or intestate succession to the legal representative,
heir, beneficiary or a member of the immediate family of the Stockholder; (D) Transfer the Subject Shares to stockholders, direct or
indirect affiliates (within the meaning set forth in Rule 405 under the Securities Act), current or former partners (general or limited),
members or managers of the Stockholder, as applicable, or to the estates of any such stockholders, affiliates, partners, members or managers,
or to another corporation, partnership, limited liability company or other business entity that controls, is controlled by or is under
common control with the Stockholder; (E) make Transfers that occur by operation of law pursuant to a qualified domestic relations order
or in connection with a divorce settlement, (F) make Transfers not involving a change in beneficial ownership; (G) if the Stockholder
is a trust, Transfer Subject Shares to any beneficiary of the Stockholder or the estate of any such beneficiary; (H) exercise an option
or warrant to purchase Parent Shares or settle a restricted stock unit or other equity award (including a net or cashless exercise of
such option or warrant); (I) Transfer Parent Shares to Parent to cover tax withholding obligations of the Stockholder in connection with
the vesting, settlement or exercise of any options, warrants, restricted stock units or other equity awards, as applicable, provided
that in each such case, the underlying Parent Shares shall continue to be subject to the restrictions on transfer set forth in
this Agreement; (J) Transfer Parent Shares to Parent pursuant to arrangements under which Parent has the option to repurchase such Parent
Shares; and (K) Transfer the Subject Shares in open market transactions (including, without limitation, the establishment of a 10b5-1
Plan and any Transfers pursuant to such 10b5-1 Plan) during the Restricted Period to generate such amount of net proceeds to the Stockholder
from such Transfer (after deducting commissions) in an aggregate amount up to the total amount of taxes or estimated taxes (as applicable)
that become due as a result of the vesting and/or settlement of restricted stock units held by the Stockholder that are scheduled to
vest and/or settle immediately prior to or during the term of this Agreement; provided that, with respect to clauses (A)
through (G) above, the transferee agrees in writing to be bound by the terms and conditions of this Agreement and either the Stockholder
or the transferee provides the Company with a copy of such agreement promptly upon consummation of any such Transfer; provided,
further that no filing under the Exchange Act or other public announcement shall be required or shall be made voluntarily
in connection with such Transfer (other than filings made in respect of involuntary Transfers and, in the case of clause (L), filings
under Section 16(a) of the Exchange Act shall only be permissible if such filing clearly indicates in the footnotes thereto that the
filing relates to securities being sold to generate net proceeds up to the total amount of taxes or estimated taxes (as applicable) that
become due as a result of the vesting and/or settlement of Parent equity awards); provided that reasonable notice shall
be provided to Parent prior to any such filing and that the underlying Parent Shares shall continue to be subject to the restrictions
on Transfer set forth in this Agreement (other than with respect to Transfers pursuant to clause (L)). For purposes of this Agreement,
“immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
1.3.
Documentation and Information. The Stockholder shall permit and hereby authorizes the Company and Parent to publish and
disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document that the Company or Parent
reasonably determines to be necessary in connection with the Merger and any of the Contemplated Transactions, the Stockholder’s
identity and ownership of the Subject Shares and the nature of the Stockholder’s commitments and obligations under this Agreement.
Parent is an intended third-party beneficiary of this Section 1.3.
1.4.
Irrevocable Proxy. The Stockholder hereby revokes (or agrees to cause to be revoked) any proxies that the Stockholder has
heretofore granted with respect to the Subject Shares. The Stockholder hereby irrevocably appoints the Company as attorney-in-fact and
proxy for and on behalf of the Stockholder, for and in the name, place and stead of the Stockholder, to: (a) attend any and all meetings
of the Parent Stockholders, (b) vote, express consent or dissent or issue instructions to the record holder to vote the Subject Shares
in accordance with the provisions of Section 1.1 at any and all meetings of the Parent Stockholders or in connection with any
action sought to be taken by written consent of the Parent Stockholders without a meeting and (c) grant or withhold, or issue instructions
to the record holder to grant or withhold, consistent with the provisions of Section 1.1, all written consents with respect to
the Subject Shares at any and all meetings of the Parent Stockholders or in connection with any action sought to be taken by written
consent of the Parent Stockholders without a meeting. The Company agrees not to exercise the proxy granted herein for any purpose other
than the purposes described in this Agreement. The foregoing proxy shall be deemed to be a proxy coupled with an interest, is irrevocable
(and as such shall survive and not be affected by the death, incapacity, mental illness or insanity of the Stockholder, as applicable)
until the termination of this Agreement and shall not be terminated by operation of law or upon the occurrence of any other event other
than the termination of this Agreement pursuant to Section 4.2. The Stockholder authorizes such attorney and proxy to substitute
any other Person to act hereunder, to revoke any substitution and to file this proxy and any substitution or revocation with the Secretary
of Parent. The Stockholder hereby affirms that the proxy set forth in this Section 1.4 is given in connection with and granted
in consideration of and as an inducement to the Company, Parent and Merger Sub to enter into the Merger Agreement and that such proxy
is given to secure the obligations of the Stockholder under Section 1.1. The proxy set forth in this Section 1.4 is executed
and intended to be irrevocable, subject, however, to its automatic termination upon the termination of this Agreement pursuant to Section
4.2. With respect to any Subject Shares that are owned beneficially by the Stockholder but are not held of record by the Stockholder
(other than shares beneficially owned by the Stockholder that are held in the name of a bank, broker or nominee), the Stockholder shall
take all action necessary to cause the record holder of such Subject Shares to grant the irrevocable proxy and take all other actions
provided for in this Section 1.4 with respect to such Subject Shares.
1.5.
No Ownership Interest. Nothing contained in this Agreement will be deemed to vest in the Company any direct or indirect
ownership or incidents of ownership of or with respect to the Subject Shares. All rights, ownership and economic benefits of and relating
to the Subject Shares will remain and belong to the Stockholder, and the Company will have no authority to manage, direct, superintend,
restrict, regulate, govern or administer any of the policies or operations of Parent or exercise any power or authority to direct the
Stockholder in the voting of any of the Subject Shares, except as otherwise expressly provided herein with respect to the Subject Shares
and except as otherwise expressly provided in the Merger Agreement.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDER
The
Stockholder represents and warrants to the Company that:
2.1.
Organization; Authorization; Binding Agreement. The Stockholder, if not a natural person, is duly incorporated or organized,
as applicable, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization. The Stockholder
has full legal capacity and power, right and authority to execute and deliver this Agreement and to perform the Stockholder’s obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by
the Stockholder, and constitutes a legal, valid and binding obligation of the Stockholder enforceable against the Stockholder in accordance
with its terms, subject to the Enforceability Exceptions.
2.2.
Ownership of Subject Shares; Total Shares. The Stockholder is the record or beneficial owner of the Subject Shares and
has good and marketable title to the Subject Shares free and clear of any Encumbrances (including any restriction on the right to vote
or otherwise transfer the Subject Shares), except (a) as provided hereunder, (b) pursuant to any applicable restrictions on transfer
under the Securities Act, (c) subject to any risk of forfeiture or repurchase rights of Parent with respect to any Parent Shares granted
to the Stockholder under an employee benefit plan of Parent and (d) as provided in the bylaws of Parent. The Subject Shares listed on
Schedule A opposite the Stockholder’s name constitute all Parent Shares owned by the Stockholder as of the date hereof.
Except pursuant to Parent’s bylaws and the right of Parent to purchase or acquire any Parent Shares pursuant to an employee benefit
plan of Parent, no Person has any contractual or other right or obligation to purchase or otherwise acquire any of the Subject Shares.
For purposes of this Agreement “Beneficial Ownership” shall be interpreted as defined in Rule 13d-3 under the
Exchange Act; provided that for purposes of determining Beneficial Ownership, a Person shall be deemed to be the Beneficial
Owner of any securities that may be acquired by such Person pursuant to any Contract or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise (irrespective of whether the right to acquire such securities is exercisable immediately or
only after the passage of time, including the passage of time in excess of 60 days, the satisfaction of any conditions, the occurrence
of any event or any combination of the foregoing).
2.3.
Voting Power. The Stockholder has full voting power, with respect to the Subject Shares, and full power of disposition,
full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth
in this Agreement, in each case, with respect to all of the Subject Shares. None of the Subject Shares are subject to any proxy, voting
trust or other agreement or arrangement with respect to the voting of the Subject Shares, except as provided hereunder.
2.4.
Reliance. The Stockholder has had the opportunity to review the Merger Agreement, including the provisions relating to
the payment and allocation of the consideration to be paid to the equityholders of the Company, and this Agreement with counsel of the
Stockholder’s own choosing. The Stockholder has had an opportunity to review with its own tax advisors the tax consequences of
the Merger and the transactions contemplated by the Merger Agreement. The Stockholder understands that it must rely solely on its advisors
and not on any statements or representations made by Parent, the Company or any of their respective agents or representatives. The Stockholder
understands that such Stockholder (and not Parent, the Company or the Surviving Corporation) shall be responsible for such Stockholder’s
tax liability that may arise as a result of the Merger or the transactions contemplated by the Merger Agreement. The Stockholder understands
and acknowledges that the Company, Parent and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s
execution, delivery and performance of this Agreement.
2.5.
Absence of Litigation. With respect to the Stockholder, as of the date hereof, there is no action, suit, investigation
or proceeding pending against, or, to the knowledge of the Stockholder, threatened against, the Stockholder or any of the Stockholder’s
properties or assets (including the Subject Shares) that could reasonably be expected to prevent, delay or impair the ability of the
Stockholder to perform the Stockholder’s obligations hereunder or to consummate the transactions contemplated hereby.
2.6.
Non-Contravention. The execution and delivery of this Agreement by the Stockholder and the performance of the transactions
contemplated by this Agreement by the Stockholder does not and will not violate, conflict with, or result in a breach of: (a) the organizational
documents of such Stockholder, (b) any applicable Law or any injunction, judgment, order, decree, ruling, charge, or other restriction
of any Governmental Body to which the Stockholder is subject, or (c) any Contract to which the Stockholder is a party or is bound or
to which the Subject Shares are subject, such that it could reasonably be expected to prevent, delay or impair the ability of the Stockholder
to perform the Stockholder’s obligations hereunder or to consummate the transactions contemplated hereby.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Stockholder that:
3.1.
Organization; Authorization. The Company is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Alabama. The consummation of the transactions contemplated hereby is within the Company’s corporate powers
and has been duly authorized by all necessary corporate actions on the part of the Company. The Company has full power and authority
to execute, deliver and perform this Agreement.
3.2.
Binding Agreement. This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid
and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.
ARTICLE
IV
MISCELLANEOUS
4.1.
Notices. All notices, requests and other communications to either party hereunder shall be in writing (including electronic
mail) and shall be given, (a) if to the Company, in accordance with the provisions of the Merger Agreement and (b) if to the Stockholder,
to the Stockholder’s address or electronic mail address set forth on a signature page hereto, or to such other address or electronic
mail address as the Stockholder may hereafter specify in writing to the Company.
4.2.
Termination. This Agreement shall terminate automatically, without any notice or other action by any Person, upon the earlier
of (a) the termination of the Merger Agreement in accordance with its terms and (b) the Effective Time. Upon termination of this Agreement,
neither party shall have any further obligations or liabilities under this Agreement; provided, however, that (i)
nothing set forth in this Section 4.2 shall relieve either party from liability for any breach of this Agreement prior to termination
hereof and (ii) the provisions of this Article IV shall survive any termination of this Agreement.
4.3.
Confidentiality. Except to the extent required by applicable Law, the Stockholder shall hold any non-public information
regarding this Agreement, the Merger Agreement and the Merger in strict confidence and shall not divulge any such information to any
third person until Parent has publicly disclosed its entry into the Merger Agreement and this Agreement; provided, however,
that the Stockholder may disclose such information (a) to its attorneys, accountants, consultants, trustees, beneficiaries and other
representatives (provided such representatives are subject to confidentiality obligations at least as restrictive as those
contained herein), and (b) to any Affiliate, partner, member, stockholder, parent or subsidiary of the Stockholder, provided
in each case that the Stockholder informs the Person receiving the information that such information is confidential and such Person
agrees in writing to abide by the terms of this Section 4.3. Neither the Stockholder nor any of its Affiliates (other than Parent,
whose actions shall be governed by the Merger Agreement), shall issue or cause the publication of any press release or other public announcement
with respect to this Agreement, the Merger, the Merger Agreement or the other transactions contemplated hereby or thereby without the
prior written consent of the Company and Parent, except as may be required by applicable Law in which circumstance such announcing party
shall make reasonable efforts to consult with the Company and Parent to the extent practicable. Parent is an intended third-party beneficiary
of this Section 4.3.
4.4.
Amendments and Waivers. Any provision of this Agreement may be amended or waived if such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
4.5.
Binding Effect; Benefit; Assignment. The provisions of this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns. Except as set forth in Section 1.3 and Section 4.3,
no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person
other than the parties hereto and their respective successors and assigns. Neither party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the consent of the other party hereto; provided that any such
delegation, transfer or assignment shall not relieve the assigning party of any of its obligations hereunder.
4.6.
Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. In any action or proceeding
between any of the parties hereto arising out of or relating to this Agreement, each party hereto: (a) irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such
court does not have subject matter jurisdiction, the United States District Court for the District of Delaware or, to the extent that
neither of the foregoing courts has jurisdiction, the Superior Court of the State of Delaware (the “Delaware Courts”);
(b) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in accordance with clause
(a) of this Section 4.6; (c) waives any objection to laying venue in any such action or proceeding in such courts; (d) waives
any objection that such courts are an inconvenient forum or do not have jurisdiction over any party hereto; (e) agrees that service of
process upon such party in any such action or proceeding shall be effective if notice is given in accordance with Section 4.1
of this Agreement; and (f) irrevocably and unconditionally waives the right to trial by jury.
4.7.
Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all
of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by all
parties by facsimile or electronic transmission in .PDF format shall be sufficient to bind the parties to the terms and conditions of
this Agreement.
4.8.
Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.
4.9.
Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability
of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction
declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such
determination will have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision
with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power
granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid
and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid
or unenforceable term or provision.
4.10.
Specific Performance. Any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will
not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any Delaware Court, this being in addition to any other remedy to which they are entitled at law or
in equity, and each of the parties hereto waives any bond, surety or other security that might be required of any other party with respect
thereto.
4.11.
Construction.
(a)
For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and
the neuter gender shall include masculine and feminine genders.
(b)
The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party
shall not be applied in the construction or interpretation of this Agreement.
(c)
As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed
to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
(d)
Except as otherwise indicated, all references in this Agreement to “Sections,” “Articles,” and “Schedules”
are intended to refer to Sections or Articles of this Agreement and Schedules to this Agreement, respectively.
(e)
The bold-faced headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
4.12.
Further Assurances. Each of the parties hereto will execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary under applicable Law to perform their respective obligations as expressly set forth under this Agreement.
4.13.
Capacity as Stockholder. The Stockholder signs this Agreement solely in the Stockholder’s capacity as a holder of
Parent Shares, and not in the Stockholder’s capacity as a director, officer or employee of Parent or any of its Subsidiaries or
in the Stockholder’s capacity as a trustee or fiduciary of any employee benefit plan or trust. Notwithstanding anything herein
to the contrary, nothing herein shall in any way restrict a director or officer of Parent in the exercise of his or her fiduciary duties
as a director or officer of Parent or in his or her capacity as a trustee or fiduciary of any employee benefit plan or trust or prevent
or be construed to create any obligation on the part of any director or officer of Parent or any trustee or fiduciary of any employee
benefit plan or trust from taking any action in his or her capacity as such director, officer, trustee or fiduciary.
4.14.
No Agreement Until Executed. Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement,
this Agreement shall not constitute or be deemed to evidence a contract, agreement, arrangement or understanding between the parties
hereto unless and until (a) the Parent Board has approved, for purposes of any applicable anti-takeover laws and regulations, and any
applicable provision of Parent’s organizational documents, the Merger, (b) the Merger Agreement is executed by all parties thereto,
and (c) this Agreement is executed by all parties hereto.
(SIGNATURE
PAGE FOLLOWS)
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
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Serina
Therapeutics, Inc. |
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By: |
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Name: |
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Title: |
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
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STOCKHOLDER |
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(Print
Name of Stockholder) |
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(Signature) |
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(Name
and Title of Signatory, if Signing on Behalf of an Entity) |
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Address
for Notices: |
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Email: |
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Schedule
A
| Name
of Stockholder |
No.
Shares |
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[●] |
Exhibit
10.2
SUPPORT
AGREEMENT
This
Support Agreement (this “Agreement”), is made as of August
__, 2023, by and between AgeX Therapeutics, Inc., a Delaware corporation (“Parent”),
and the Person set forth on Schedule A hereto (the “Stockholder”).
WHEREAS,
as of the date hereof, the Stockholder is the holder of the number of shares of common stock, par value $0.01 per share (“Common
Stock”) and preferred stock, par value $0.01 per share (“Preferred Stock” and collectively with
the Common Stock, the “Company Shares”), of Serina Therapeutics,
Inc., an Alabama corporation (the “Company”), set forth opposite the Stockholder’s name on
Schedule A (all Company Shares owned by the Stockholder, or hereafter issued to or otherwise acquired, whether beneficially or
of record, or owned by the Stockholder prior to the termination of this Agreement, as well as shares set forth on Schedule A,
being referred to herein as the “Subject Shares”);
WHEREAS,
the Company, Parent and Canaria Transaction Corporation, an Alabama corporation
and wholly owned subsidiary of Parent (“Merger Sub”), propose to enter into an Agreement and Plan of Merger
and Reorganization (the “Merger Agreement”), which provides, among other things, for the merger of Merger Sub
with and into the Company, with the Company continuing as the surviving company (the “Merger”), upon the terms
and subject to the conditions set forth in the Merger Agreement (capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to the terms in the Merger Agreement); and
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, Parent has required that the Stockholder, and as an inducement
and in consideration therefor, the Stockholder (in the Stockholder’s capacity as a holder of the Subject Shares) has agreed to,
enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below
and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, do hereby agree as follows:
ARTICLE
I
VOTING
AGREEMENT; GRANT OF PROXY
The
Stockholder hereby covenants and agrees that:
1.1.
Voting of Subject Shares. From and after the date hereof, at every meeting of the holders of Company Shares (the “Company
Stockholders”), however called, and at every adjournment or postponement thereof (or pursuant to a written consent if the
Company Stockholders act by written consent in lieu of a meeting), the Stockholder shall, or shall cause the holder of record on any
applicable record date to, be present (in person or by proxy) and to vote or cause to be voted the Subject Shares (a) in favor of adopting
the Merger Agreement and approving the Merger, the other Contemplated Transactions, the Company Stockholder Matters, and the other actions
contemplated by the Merger Agreement, including, without limitation, the issuance of Parent Common Stock pursuant to the Merger Agreement,
(b) against approval of any proposal made in opposition to, or in competition with, the Merger Agreement or the consummation of the Merger,
and (c) against any Acquisition Proposal. Except as permitted under clauses (A) through (J) of Section 1.2 below, the Stockholder
shall retain at all times the right to vote the Subject Shares in the Stockholder’s sole discretion and without any other limitation
on those matters other than those set forth in this Section 1.1 that are at any time or from time to time presented for consideration
to the Company Stockholders.
1.2.
No Inconsistent Arrangements. Except as provided hereunder or under the Merger Agreement, prior to the Effective Time,
the Stockholder shall not, directly or indirectly, (a) create any Encumbrance other than restrictions imposed by Law or pursuant to this
Agreement on any Subject Shares; (b) transfer, sell, assign, gift or otherwise dispose of (collectively, “Transfer”),
or enter into any contract with respect to any Transfer of, the Subject Shares or any interest therein; (c) grant or permit the grant
of any proxy, power of attorney or other authorization in or with respect to the Subject Shares; (d) deposit or permit the deposit of
the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to the Subject Shares; or (e) take
any action that, to the knowledge of the Stockholder, would make any representation or warranty of the Stockholder herein untrue or incorrect
in any material respect or have the effect of preventing the Stockholder from performing the Stockholder’s obligations hereunder.
Any action taken in violation of the foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, the Stockholder
may (A) Transfer Subject Shares as a bona fide charitable contribution, gift or donation; (B) Transfer the Subject Shares to any
natural person who is an immediate family member of the Stockholder, or to any trust for the direct or indirect benefit of the Stockholder
or an immediate family of the Stockholder; (C) Transfer the Subject Shares by will, other testamentary document or intestate succession
to the legal representative, heir, beneficiary or a member of the immediate family of the Stockholder; (D) Transfer the Subject Shares
to stockholders, direct or indirect affiliates (within the meaning set forth in Rule 405 under the Securities Act), current or former
partners (general or limited), members or managers of the Stockholder, as applicable, or to the estates of any the stockholders, affiliates,
partners, members or managers, or to another corporation, partnership, limited liability company or other business entity that controls,
is controlled by or is under common control with the Stockholder or, if the Stockholder is a natural person, is controlled by a member
of the Stockholder’s immediate family; (E) make Transfers that occur by operation of law pursuant to a qualified domestic relations
order or in connection with a divorce settlement; (F) make Transfers not involving a change in beneficial ownership; (G) if the Stockholder
is a trust, Transfer Subject Shares to any beneficiary of the Stockholder or the estate of any such beneficiary; (H) exercise an option
or warrant to purchase Company Shares or settle a restricted stock unit or other equity award (including a net or cashless exercise of
that option or warrant); (I) Transfer Company Shares to the Company to cover tax withholding obligations of the Stockholder in connection
with the vesting, settlement or exercise of any options, warrants, restricted stock units or other equity awards, as applicable, provided
that in each case, the underlying Company Shares shall continue to be subject to the restrictions on transfer set forth in this
Agreement; and (J) Transfer Company Shares to the Company pursuant to arrangements under which the Company has the option to repurchase
those Company Shares; provided that, with respect to clauses (A) through (G) above, the transferee agrees in writing to
be bound by the terms and conditions of this Agreement and either the Stockholder or the transferee provides Parent with a copy of the
agreement promptly upon consummation of any such Transfer; provided, further that with respect to clauses
(A) through (C) and (E) through (G) above, no filing under the Exchange Act or other public announcement shall be required or shall be
made voluntarily in connection with any such Transfer (other than filings made in respect of involuntary Transfers); provided that
reasonable notice shall be provided to Parent and Company prior to any such Transfer and prior to any such filing and that the underlying
Company Shares shall continue to be subject to the restrictions on Transfer set forth in this Agreement. For purposes of this Agreement,
“immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
1.3.
Documentation and Information. The Stockholder shall permit and hereby authorizes the Company and Parent to publish and
disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document that the Company or Parent
reasonably determines to be necessary in connection with the Merger and any of the Contemplated Transactions, the Stockholder’s
identity and ownership of the Subject Shares and the nature of the Stockholder’s commitments and obligations under this Agreement.
The Company is an intended third-party beneficiary of this Section 1.3.
1.4.
Irrevocable Proxy. The Stockholder hereby revokes (or agrees to cause to be revoked) any proxies that the Stockholder has
heretofore granted with respect to the Subject Shares. The Stockholder hereby irrevocably appoints Parent as attorney-in-fact and proxy
for and on behalf of the Stockholder, for and in the name, place and stead of the Stockholder, to: (a) attend any and all meetings of
the Company Stockholders, (b) vote, express consent or dissent or issue instructions to the record holder to vote the Subject Shares
in accordance with the provisions of Section 1.1 at any and all meetings of the Company Stockholders or in connection with any
action sought to be taken by written consent of the Company Stockholders without a meeting and (c) grant or withhold, or issue instructions
to the record holder to grant or withhold, consistent with the provisions of Section 1.1, all written consents with respect to
the Subject Shares at any and all meetings of the Company Stockholders or in connection with any action sought to be taken by written
consent of the Company Stockholders without a meeting. Parent agrees not to exercise the proxy granted herein for any purpose other than
the purposes described in this Agreement. The foregoing proxy shall be deemed to be a proxy coupled with an interest, is irrevocable
(and as such shall survive and not be affected by the death, incapacity, mental illness or insanity of the Stockholder, as applicable)
until the termination of this Agreement and shall not be terminated by operation of law or upon the occurrence of any other event other
than the termination of this Agreement pursuant to Section 4.2. The Stockholder authorizes the attorney and proxy to substitute
any other Person to act hereunder, to revoke any substitution and to file this proxy and any substitution or revocation with the Secretary
of the Company. The Stockholder hereby affirms that the proxy set forth in this Section 1.4 is given in connection with and granted
in consideration of and as an inducement to Parent, the Company to enter into the Merger Agreement and that the proxy is given to secure
the obligations of the Stockholder under Section 1.1. The proxy set forth in this Section 1.4 is executed and intended
to be irrevocable, subject, however, to its automatic termination upon the termination of this Agreement pursuant to Section 4.2.
With respect to any Subject Shares that are owned beneficially by the Stockholder but are not held of record by the Stockholder (other
than shares beneficially owned by the Stockholder that are held in the name of a bank, broker or nominee), the Stockholder shall take
all action necessary to cause the record holder of the Subject Shares to grant the irrevocable proxy and take all other actions provided
for in this Section 1.4 with respect to the Subject Shares.
1.5.
No Ownership Interest. Nothing contained in this Agreement will be deemed to vest in Parent any direct or indirect ownership
or incidents of ownership of or with respect to the Subject Shares. All rights, ownership and economic benefits of and relating to the
Subject Shares will remain and belong to the Stockholder, and Parent will have no authority to manage, direct, superintend, restrict,
regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Stockholder
in the voting of any of the Subject Shares, except as otherwise expressly provided herein with respect to the Subject Shares and except
as otherwise expressly provided in the Merger Agreement.
1.6.
No Exercise of Dissenters’ Rights; Waivers. In connection with the Contemplated Transactions, the Stockholder hereby
expressly (a) waives, to the extent permitted under applicable Law, any and all rights under Article 13 of the Alabama Business Corporation
Law (the “ABCL”), a copy of which is attached hereto as Appendix I, with respect to any Subject Shares and any and all rights
under any other applicable Law granting the Stockholder the right to have any Subject Shares appraised in connection with the Contemplated
Transactions or to otherwise exercise appraisal rights in the Contemplated Transactions, (b) agrees that the Stockholder will not, under
any circumstances in connection with the Contemplated Transactions, exercise any appraisal rights in respect of any Subject Shares, and
(c) agrees that the Stockholder will not bring, commence, institute, maintain, prosecute, participate in or voluntarily aid any action,
claim, suit or cause of action, in law or in equity, in any court or before any Governmental Body, which (i) challenges the validity
of or seeks to enjoin the operation of any provision of this Agreement or (ii) alleges that the execution and delivery of this Agreement
by the Stockholder, or the approval of the Merger Agreement by the board of directors of the Company (the “Company Board”),
breaches any fiduciary duty of the Company Board or any member thereof; provided that the Stockholder may defend against,
contest or settle any such action, claim, suit or cause of action brought against the Stockholder that relates solely to the Stockholder’s
capacity as a director, officer or securityholder of the Company.
1.7.
No Solicitation of Transactions. The Stockholder hereby agrees that the Stockholder shall not, directly or indirectly:
(a) solicit, initiate or knowingly encourage, induce or facilitate the communication, making, submission or announcement of any Acquisition
Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition
Inquiry; (b) furnish any non-public information regarding the Company or any of its Subsidiaries to any Person in connection with or
in response to an Acquisition Proposal or Acquisition Inquiry; (c) engage in discussions (other than to inform any Person of the existence
of the provisions in this Section 1.7) or negotiations with any Person with respect to any Acquisition Proposal or Acquisition
Inquiry; (d) approve, endorse or recommend any Acquisition Proposal; (e) execute or enter into any letter of intent or any Contract contemplating
or otherwise relating to any Acquisition Transaction; or (f) publicly propose to do any of the foregoing. The Stockholder hereby
represents and warrants that the Stockholder has read Section 4.5 (Company Non-Solicitation) of the Merger Agreement and agrees not to
engage in any actions prohibited thereby.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDER
The
Stockholder represents and warrants to Parent that:
2.1.
Organization; Authorization; Binding Agreement. The Stockholder, if not a natural person, is duly incorporated or organized,
as applicable, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization. The Stockholder
has full legal capacity and power, right and authority to execute and deliver this Agreement and to perform the Stockholder’s obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by
the Stockholder, and constitutes a legal, valid and binding obligation of the Stockholder enforceable against the Stockholder in accordance
with its terms, subject to the Enforceability Exceptions.
2.2.
Ownership of Subject Shares; Total Shares. The Stockholder is the record or beneficial owner of the Subject Shares and
has good and marketable title to the Subject Shares free and clear of any Encumbrances (including any restriction on the right to vote
or otherwise transfer the Subject Shares), except (a) as provided hereunder, (b) pursuant to any applicable restrictions on transfer
under the Securities Act, (c) subject to any risk of forfeiture or repurchase rights of the Company with respect to any Company Shares
granted to the Stockholder under an employee benefit plan of Company and (d) as provided in (i) the certificate of incorporation, (ii)
the bylaws of the Company, or (iii) the Second Amended and Restated Serina Therapeutics, Inc. Founding Shareholders’ Buy-Sell Agreement,
as amended, the Serina Therapeutics, Inc. Series A-3 Preferred Stockholders’ Buy-Sell Agreement, the Serina Therapeutics, Inc.
Series A-4 Preferred Shareholders’ Buy-Sell Agreement, and/or the Serina Therapeutics, Inc. 2017 Stock Option Plan Shareholders’
Buy-Sell Agreement, all being by and among the Company and certain stockholders of the Company (the “Shareholders’
Agreements”). The Subject Shares listed on Schedule A opposite the Stockholder’s name constitute all of the
Company Shares owned by the Stockholder as of the date hereof. Except pursuant to the Company’s certificate of incorporation, bylaws
and the right of the Company to purchase or acquire any Company Shares pursuant to an employee benefit plan of the Company, no Person
has any contractual or other right or obligation to purchase or otherwise acquire any of the Subject Shares. For purposes of this Agreement
“Beneficial Ownership” shall be interpreted as defined in Rule 13d-3 under the Exchange Act; provided
that for purposes of determining Beneficial Ownership, a Person shall be deemed to be the Beneficial Owner of any securities
that may be acquired by that Person pursuant to any Contract or upon the exercise of conversion rights, exchange rights, warrants or
options, or otherwise (irrespective of whether the right to acquire those securities is exercisable immediately or only after the passage
of time, including the passage of time in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any combination
of the foregoing).
2.3.
Voting Power. The Stockholder has full voting power, with respect to the Subject Shares, and full power of disposition,
full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth
in this Agreement, in each case, with respect to all of the Subject Shares. None of the Subject Shares are subject to any proxy, voting
trust or other agreement or arrangement with respect to the voting of the Subject Shares, except as provided in the Shareholders’
Agreements and as provided hereunder.
2.4.
Reliance. The Stockholder has had the opportunity to review the Merger Agreement, including the provisions relating to
the payment and allocation of the consideration to be paid to the Company Stockholders, and this Agreement with counsel of the Stockholder’s
own choosing. The Stockholder has had an opportunity to review with its own tax advisors the tax consequences of the Merger and the transactions
contemplated by the Merger Agreement. The Stockholder understands that it must rely solely on its advisors and not on any statements
or representations made by Parent, the Company or any of their respective agents or representatives. The Stockholder understands that
the Stockholder (and not Parent, the Company or the Surviving Corporation) shall be responsible for the Stockholder’s tax liability
that may arise as a result of the Merger or the transactions contemplated by the Merger Agreement. The Stockholder understands and acknowledges
that the Company, Parent and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery
and performance of this Agreement.
2.5.
Absence of Litigation. With respect to the Stockholder, as of the date hereof, there is no action, suit, investigation
or proceeding pending against, or, to the knowledge of the Stockholder, threatened against, the Stockholder or any of the Stockholder’s
properties or assets (including the Subject Shares) that could reasonably be expected to prevent, delay or impair the ability of the
Stockholder to perform the Stockholder’s obligations hereunder or to consummate the transactions contemplated hereby.
2.6.
Non-Contravention. The execution and delivery of this Agreement by the Stockholder and the performance of the transactions
contemplated by this Agreement by the Stockholder does not and will not violate, conflict with, or result in a breach of: (a) the organizational
documents of the Stockholder, (b) any applicable Law or any injunction, judgment, order, decree, ruling, charge, or other restriction
of any Governmental Body to which the Stockholder is subject, or (c) any Contract to which the Stockholder is a party or is bound or
to which the Subject Shares are subject, such that it could reasonably be expected to prevent, delay or impair the ability of the Stockholder
to perform the Stockholder’s obligations hereunder or to consummate the transactions contemplated hereby.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Parent
represents and warrants to the Stockholder that:
3.1.
Organization; Authorization. Parent is a corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The consummation of the transactions contemplated hereby is within Parent’s corporate powers and
has been duly authorized by all necessary corporate actions on the part of Parent. Parent has full power and authority to execute, deliver
and perform this Agreement.
3.2.
Binding Agreement. This Agreement has been duly authorized, executed and delivered by Parent and constitutes a valid and
binding obligation of Parent enforceable against Parent in accordance with its terms, subject to the Enforceability Exceptions.
ARTICLE
IV
MISCELLANEOUS
4.1.
Notices. All notices, requests and other communications to either party hereunder shall be in writing (including electronic
mail) and shall be given, (a) if to Parent, in accordance with the provisions of the Merger Agreement and (b) if to a Stockholder, to
the Stockholder’s address or electronic mail address set forth on a signature page hereto, or to such other address or electronic
mail address as the Stockholder may hereafter specify in writing to Parent.
4.2.
Termination. This Agreement shall terminate automatically, without any notice or other action by any Person, upon the earlier
of (a) the termination of the Merger Agreement in accordance with its terms and (b) the Effective Time. Upon termination of this Agreement,
neither party shall have any further obligations or liabilities under this Agreement; provided, however, that (i)
nothing set forth in this Section 4.2 shall relieve either party from liability for any breach of this Agreement prior to termination
hereof, and (ii) the provisions of this Article IV shall survive any termination of this Agreement.
4.3.
Confidentiality. Except to the extent required by applicable Law, the Stockholder shall hold any non-public information
regarding this Agreement, the Merger Agreement and the Merger in strict confidence and shall not divulge any such information to any
third person until Parent has publicly disclosed its entry into the Merger Agreement and this Agreement; provided, however,
that the Stockholder may disclose that information (a) to its attorneys, accountants, consultants, trustees, beneficiaries and other
representatives (provided the representatives are subject to confidentiality obligations at least as restrictive as those
contained herein), and (b) to any Affiliate, partner, member, stockholder, parent or subsidiary of the Stockholder, provided
in each case that the Stockholder informs the Person receiving the information that the information is confidential and that Person agrees
in writing to abide by the terms of this Section 4.3. Neither the Stockholder nor any of its Affiliates (other than the Company,
whose actions shall be governed by the Merger Agreement), shall issue or cause the publication of any press release or other public announcement
with respect to this Agreement, the Merger, the Merger Agreement or the other transactions contemplated hereby or thereby without the
prior written consent of the Company and Parent, except as may be required by applicable Law in which circumstance the announcing party
shall make reasonable efforts to consult with the Company and Parent to the extent practicable. The Company is an intended third-party
beneficiary of this Section 4.3.
4.4.
Amendments and Waivers. Any provision of this Agreement may be amended or waived if that amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
4.5.
Binding Effect; Benefit; Assignment. The provisions of this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns. Except as set forth in Section 1.3 and Section 4.3,
no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person
other than the parties hereto and their respective successors and assigns. Neither party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the consent of the other party hereto; provided that any such
delegation, transfer or assignment shall not relieve the assigning party of any of its obligations hereunder.
4.6.
Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State
of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. In any action or proceeding
between any of the parties hereto arising out of or relating to this Agreement, each party hereto: (a) irrevocably and unconditionally
consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent that
court does not have subject matter jurisdiction, the United States District Court for the District of Delaware or, to the extent that
neither of the foregoing courts has jurisdiction, the Superior Court of the State of Delaware (the “Delaware Courts”);
(b) agrees that all claims in respect of any such action or proceeding shall be heard and determined exclusively in accordance with clause
(a) of this Section 4.6; (c) waives any objection to laying venue in any such action or proceeding in those courts; (d) waives
any objection that those courts are an inconvenient forum or do not have jurisdiction over any party hereto; (e) agrees that service
of process upon that party in any such action or proceeding shall be effective if notice is given in accordance with Section 4.1
of this Agreement; and (f) irrevocably and unconditionally waives the right to trial by jury. Notwithstanding the foregoing, all matters
relating to the fiduciary obligations of the Company Board and the internal affairs of the Company or the Company Board (including, without
limitation, the interpretation of the Company’s Organizational Documents and the ABCL) shall be governed by and construed in accordance
with the Laws of the State of Alabama without regard to the conflicts of law principles thereof to the extent that such principles would
direct a matter to another jurisdiction.
4.7.
Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all
of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by all
parties by facsimile or electronic transmission in .PDF format shall be sufficient to bind the parties to the terms and conditions of
this Agreement.
4.8.
Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.
4.9.
Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability
of the offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction
declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making that
determination will have the power to limit the term or provision, to delete specific words or phrases or to replace the term or provision
with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be valid and enforceable as so modified. In the event that court does not exercise the power
granted to it in the prior sentence, the parties hereto agree to replace the invalid or unenforceable term or provision with a valid
and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of the invalid
or unenforceable term or provision.
4.10.
Specific Performance. Any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity upon that party, and the exercise by a party of any one remedy will
not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any Delaware Court, this being in addition to any other remedy to which they are entitled at law or
in equity, and each of the parties hereto waives any bond, surety or other security that might be required of any other party with respect
thereto.
4.11.
Construction.
(a)
For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and
the neuter gender shall include masculine and feminine genders.
(b)
The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party
shall not be applied in the construction or interpretation of this Agreement.
(c)
As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed
to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
(d)
Except as otherwise indicated, all references in this Agreement to “Sections,” “Articles,” and “Schedules”
are intended to refer to Sections or Articles of this Agreement and Schedules to this Agreement, respectively.
(e)
The bold-faced headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
4.12.
Further Assurances. Each of the parties hereto will execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary under applicable Law to perform their respective obligations as expressly set forth under this Agreement.
4.13.
Capacity as Stockholder. The Stockholder signs this Agreement solely in the Stockholder’s capacity as a holder of
Company Shares, and not in the Stockholder’s capacity as a director, officer or employee of the Company or any of its Subsidiaries
or in the Stockholder’s capacity as a trustee or fiduciary of any employee benefit plan or trust. Notwithstanding anything herein
to the contrary, nothing herein shall in any way restrict a director or officer of the Company in the exercise of his or her fiduciary
duties as a director or officer of the Company or in his or her capacity as a trustee or fiduciary of any employee benefit plan or trust
or prevent or be construed to create any obligation on the part of any director or officer of the Company or any trustee or fiduciary
of any employee benefit plan or trust from taking any action in his or her capacity as such director, officer, trustee or fiduciary.
4.14.
No Agreement Until Executed. Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement,
this Agreement shall not constitute or be deemed to evidence a contract, agreement, arrangement or understanding between the parties
hereto unless and until (a) the Company Board has approved, for purposes of any applicable anti-takeover laws and regulations, and any
applicable provision of the Company’s organizational documents, the Merger, (b) the Merger Agreement is executed by all parties
thereto, and (c) this Agreement is executed by all parties hereto.
(SIGNATURE
PAGE FOLLOWS)
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
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AgeX
Therapeutics, Inc.
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By: |
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Name: |
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Title: |
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
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STOCKHOLDER |
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(Print
Name of Stockholder) |
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(Signature) |
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(Name
and Title of Signatory, if Signing on Behalf of an Entity) |
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Address
for Notices: |
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Email: |
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Schedule
A
| Name
of Stockholder |
No.
Shares |
| [●] |
[●] |
Appendix
I
Title
10A, Chapter 2A, Article 13. Appraisal Rights.
Division
A Right to Appraisal and Payment for Stock.
Section
10A-2A-13.01. Definitions.
In
this Article 13:
(1)
AFFILIATE means a person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common
control with another person or is a senior executive of that person. For purposes of Section 10A-2A-13.02(b)(4), a person is deemed to
be an affiliate of its senior executives.
(2)
CORPORATION means the corporation that is the issuer of the stock held by a stockholder demanding appraisal and, for matters covered
in Section 10A-2A-13.22 through Section 10A-2A-13.31, includes the surviving organization of a merger.
(3)
FAIR VALUE means the value of the corporation’s stock determined:
(i)
immediately before the effectiveness of the corporate action to which the stockholder objects;
(ii)
using customary and current valuation concepts and techniques generally employed for similar businesses in the context of the transaction
requiring appraisal; and
(iii)
without discounting for lack of marketability or minority status.
(4)
INTEREST means interest from the date the corporate action becomes effective until the date of payment, and shall be compounded quarterly
and shall accrue at five percent over the Federal Reserve discount rate (including any surcharge) as established from time to time during
the period between the effective date of the corporate action and the date of payment.
(5)
INTERESTED TRANSACTION means a corporate action described in Section 10A-2A-13.02(a), other than a merger pursuant to Section 10A-2A-11.05,
involving an interested person in which any of the stock or assets of the corporation are being acquired or converted. As used in this
definition:
(i)
“Interested person” means a person, or an affiliate of a person, who at any time during the one-year period immediately preceding
approval by the board of directors of the corporate action:
(A)
was the beneficial owner of 20 percent or more of the voting power of the corporation, other than as owner of excluded stock;
(B)
had the power, contractually or otherwise, other than as owner of excluded stock, to cause the appointment or election of 25 percent
or more of the directors to the board of directors of the corporation; or
(C)
was a senior executive or director of the corporation or a senior executive of any affiliate of the corporation, and that senior executive
or director will receive, as a result of the corporate action, a financial benefit not generally available to other stockholders as such,
other than:
(I)
employment, consulting, retirement, or similar benefits established separately and not as part of or in contemplation of the corporate
action;
(II)
employment, consulting, retirement, or similar benefits established in contemplation of, or as part of, the corporate action that are
not more favorable than those existing before the corporate action or, if more favorable, that have been approved on behalf of the corporation
in the same manner as is provided in Section 10A-2A-8.60; or
(III)
in the case of a director of the corporation who will, in the corporate action, become a director or governing person of the acquiror
or any of its affiliates, rights and benefits as a director or governing person that are provided on the same basis as those afforded
by the acquiror generally to other directors or governing persons of the acquiror or its affiliate.
(ii)
“Beneficial owner” means any person who, directly or indirectly, through any contract, arrangement, or understanding, other
than a revocable proxy, has or shares the power to vote, or to direct the voting of, stock; except that a member of a national securities
exchange is not deemed to be a beneficial owner of securities held directly or indirectly by it on behalf of another person if the member
is precluded by the rules of the exchange from voting without instruction on contested matters or matters that may affect substantially
the rights or privileges of the holders of the securities to be voted. When two or more persons agree to act together for the purpose
of voting their stock of the corporation, each member of the group formed thereby is deemed to have acquired beneficial ownership, as
of the date of the agreement, of all stock having voting power of the corporation beneficially owned by any member of the group.
(iii)
“Excluded stock” means stock acquired pursuant to an offer for all stock having voting power if the offer was made within
one year before the corporate action for consideration of the same kind and of a value equal to or less than that paid in connection
with the corporate action.
(6)
PREFERRED STOCK means a class or series of stock whose holders have preference over any other class or series of stock with respect to
distributions.
(7)
SENIOR EXECUTIVE means the chief executive officer, chief operating officer, chief financial officer, and any individual in charge of
a principal business unit or function.
(8)
STOCKHOLDER means a record stockholder, a beneficial stockholder, and a voting trust beneficial owner.
Section
10A-2A-13.02. Right to appraisal.
(a)
A stockholder is entitled to appraisal rights, and to obtain payment of the fair value of that stockholder’s stock, in the event
of any of the following corporate actions:
(1)
consummation of a merger to which the corporation is a party (i) if the corporation is a subsidiary and the merger is governed by Section
10A-2A-11.05 or (ii) if stockholder approval is required for the merger by Section 10A-2A-11.04, or would be required but for the provisions
of Section 10A-2A-11.04(j), except that appraisal rights shall not be available to any stockholder of the corporation with respect to
stock of any class or series that remain outstanding after consummation of the merger;
(2)
consummation of a stock exchange to which the corporation is a party the stock of which will be acquired, except that appraisal rights
shall not be available to any stockholder of the corporation with respect to any class or series of stock of the corporation that is
not acquired in the stock exchange;
(3)
consummation of a disposition of assets pursuant to Section 10A-2A-12.02 if the stockholder is entitled to vote on the disposition, except
that appraisal rights shall not be available to any stockholder of the corporation with respect to stock of any class or series if (i)
under the terms of the corporate action approved by the stockholders there is to be distributed to stockholders in cash the corporation’s
net assets, in excess of a reasonable amount reserved to meet claims of the type described in Section 10A-2A-14.06 and Section 10A-2A-14.07,
(A) within one year after the stockholders’ approval of the action and (B) in accordance with their respective interests determined
at the time of distribution, and (ii) the disposition of assets is not an interested transaction;
(4)
an amendment of the certificate of incorporation with respect to a class or series of stock that reduces the number of stock of a class
or series owned by the stockholder to a fraction of a stock if the corporation has the obligation or right to repurchase the fractional
stock so created;
(5)
any other merger, stock exchange, disposition of assets or amendment to the certificate of incorporation, in each case to the extent
provided by the certificate of incorporation, bylaws or a resolution of the board of directors;
(6)
consummation of a conversion of a corporation to a foreign corporation pursuant to Article 9 or Article 8 of Chapter 1 if the stockholder
does not receive stock in the foreign corporation resulting from the conversion that has terms as favorable to the stockholder in all
material respects, and represents at least the same percentage interest of the total voting rights of the outstanding stock of the foreign
corporation, as the stock held by the stockholder before the conversion;
(7)
consummation of a conversion of a corporation to a nonprofit corporation pursuant to Article 9 of this chapter of Article 8 of Chapter
1; or
(8)
consummation of a conversion of the corporation to an unincorporated entity pursuant to Article 9 of this chapter or Article 8 of Chapter
1.
(b)
Notwithstanding subsection (a), the availability of appraisal rights under subsections (a)(1), (2), (3), (4), (6), and (8) shall be limited
in accordance with the following provisions:
(1)
Appraisal rights shall not be available for the holders of stock of any class or series of stock which is:
(i)
a covered security under Section 18(b)(1)(A) or (B) of the Securities Act of 1933;
(ii)
has at least 2,000 record stockholders; or
(iii)
issued by an open end management investment company registered with the Securities and Exchange Commission under the Investment Company
Act of 1940 and which may be redeemed at the option of the holder at net asset value.
(2)
The applicability of subsection (b)(1) shall be determined as of:
(i)
the record date fixed to determine the stockholders entitled to receive notice of the meeting of stockholders to act upon the corporate
action requiring appraisal rights or, in the case of an offer made pursuant to Section 10A-2A-11.04(j), the date of the offer; or
(ii)
if there is no meeting of stockholders and no offer made pursuant to Section 10A-2A-11.04(j), the day before the consummation of the
corporate action or effective date of the amendment of the certificate of incorporation, as applicable.
(3)
Subsection (b)(1) shall not be applicable and appraisal rights shall be available pursuant to subsection (a) for the holders of any class
or series of stock (i) who are required by the terms of the corporate action requiring appraisal rights to accept for their stock anything
other than cash or stock of any class or any series of stock of any corporation, or any other proprietary interest of any other entity,
that satisfies the standards set forth in subsection (b)(1) at the time the corporate action becomes effective, or (ii) in the case of
the consummation of a disposition of assets pursuant to Section 10A-2A-12.02, unless the cash, stock, or proprietary interests received
in the disposition are, under the terms of the corporate action approved by the stockholders, to be distributed to the stockholders,
as part of a distribution to stockholders of the net assets of the corporation in excess of a reasonable amount to meet claims of the
type described in Sections 10A-2A-14.06 and 10A-2A-14.07, (A) within one year after the stockholders’ approval of the action, and
(B) in accordance with their respective interests determined at the time of the distribution.
(4)
Subsection (b)(1) shall not be applicable and appraisal rights shall be available pursuant to subsection (a) for the holders of any class
or series of stock where the corporate action is an interested transaction.
(c)
Notwithstanding any other provision of Section 10A-2A-13.02, the certificate of incorporation as originally filed or any amendment to
the certificate of incorporation may limit or eliminate appraisal rights for any class or series of preferred stock, except that (i)
no limitation or elimination shall be effective if the class or series does not have the right to vote separately as a voting group (alone
or as part of a group) on the action or if the action is a conversion or merger in which the converted organization or the surviving
organization is not a corporation or foreign corporation, and (ii) any limitation or elimination contained in an amendment to the certificate
of incorporation that limits or eliminates appraisal rights for any stock that is outstanding immediately before the effective date of
the amendment or that the corporation is or may be required to issue or sell thereafter pursuant to any conversion, exchange, or other
right existing immediately before the effective date of the amendment shall not apply to any corporate action that becomes effective
within one year after the effective date of the amendment if that action would otherwise afford appraisal rights.
Section
10A-2A-13.03. Assertion of rights by nominees and beneficial stockholders.
(a)
A record stockholder may assert appraisal rights as to fewer than all the shares of stock registered in the record stockholder’s
name but owned by a beneficial stockholder or a voting trust beneficial owner only if the record stockholder objects with respect to
all shares of stock of a class or series owned by the beneficial stockholder or the voting trust beneficial owner and notifies the corporation
in writing of the name and address of each beneficial stockholder or voting trust beneficial owner on whose behalf appraisal rights are
being asserted. The rights of a record stockholder who asserts appraisal rights for only part of the stock held of record in the record
stockholder’s name under this subsection shall be determined as if the stock as to which the record stockholder objects and the
record stockholder’s other shares of stock were registered in the names of different record stockholders.
(b)
A beneficial stockholder and a voting trust beneficial owner may assert appraisal rights as to stock of any class or series held on behalf
of the stockholder only if the stockholder:
(1)
submits to the corporation the record stockholder’s written consent to the assertion of appraisal rights no later than the date
referred to in Section 10A-2A-13.22(b)(2)(ii); and
(2)
does so with respect to all stock of the class or series that is beneficially owned by the beneficial stockholder or the voting trust
beneficial owner.
Division
B Procedure for Exercise of Appraisal Rights.
Section
10A-2A-13.20 Notice of appraisal rights.
(a)
Where any corporate action specified in Section 10A-2A-13.02(a) is to be submitted to a vote at a stockholders’ meeting, the meeting
notice (or where no approval of the corporate action is required pursuant to Section 10A-2A-11.04(j), the offer made pursuant to Section
10A-2A-11.04(j)), must state that the corporation has concluded that appraisal rights are, are not, or may be available under this Article
13. If the corporation concludes that appraisal rights are or may be available, a copy of this Article 13 must accompany the meeting
notice or offer sent to those record stockholders entitled to exercise appraisal rights.
(b)
In a merger pursuant to Section 10A-2A-11.05, the parent entity shall notify in writing all record stockholders of the subsidiary who
are entitled to assert appraisal rights that the corporate action became effective. The notice shall be sent within 10 days after the
corporate action became effective and include the materials described in Section 10A-2A-13.22.
(c)
Where any corporate action specified in Section 10A-2A-13.02(a) is to be approved by written consent of the stockholders pursuant to
Section 10A-2A-7.04:
(1)
written notice that appraisal rights are, are not, or may be available shall be sent to each record stockholder from whom a consent is
solicited at the time consent of each stockholder is first solicited and, if the corporation has concluded that appraisal rights are
or may be available, the notice must be accompanied by a copy of this Article 13; and
(2)
written notice that appraisal rights are, are not, or may be available must be delivered together with the notice to nonconsenting and
nonvoting stockholders required by Section 10A-2A-7.04(d) and (e), may include the materials described in Section 10A-2A-13.22 and, if
the corporation has concluded that appraisal rights are or may be available, must be accompanied by a copy of this Article 13.
(d)
Where corporate action described in Section 10A-2A-13.02(a) is proposed, or a merger pursuant to Section 10A-2A-11.05 is effected, the
notice referred to in subsection (a) or (c), if the corporation concludes that appraisal rights are or may be available, and in subsection
(b) must be accompanied by:
(1)
financial statements of the corporation that issued the stock that may be subject to appraisal, consisting of a balance sheet as of the
end of a fiscal year ending not more than 16 months before the date of the notice, an income statement for that year, and a cash flow
statement for that year; provided that, if the financial statements are not reasonably available, the corporation shall provide reasonably
equivalent financial information; and
(2)
the latest interim financial statements of the corporation, if any.
(e)
The right to receive the information described in subsection (d) may be waived in writing by a stockholder before or after the corporate
action.
Section
10A-2A-13.21 Notice of intent to demand payment and consequences of voting or consenting.
(a)
If a corporate action specified in Section 10A-2A-13.02(a) is submitted to a vote at a stockholders’ meeting, a stockholder who
wishes to assert appraisal rights with respect to any class or series of stock:
(1)
shall deliver to the corporation, before the vote is taken, written notice of the stockholder’s intent to demand payment if the
proposed action is effectuated; and
(2)
shall not vote, or cause or permit to be voted, any stock of the class or series in favor of the proposed action.
(b)
If a corporate action specified in Section 10A-2A-13.02(a) is to be approved by written consent, a stockholder who wishes to assert appraisal
rights with respect to any class or series of stock shall not sign a consent in favor of the proposed action with respect to that class
or series of stock.
(c)
If a corporate action specified in Section 10A-2A-13.02(a) does not require stockholder approval pursuant to Section 10A-2A-11.04(j),
a stockholder who wishes to assert appraisal rights with respect to any class or series of stock (i) shall deliver to the corporation
before the stock is purchased pursuant to the offer written notice of the stockholder’s intent to demand payment if the proposed
action is effected; and (ii) shall not tender, or cause or permit to be tendered, any stock of the class or series in response to the
offer.
(d)
A stockholder who fails to satisfy the requirements of subsection (a), (b), or (c) is not entitled to payment under this Article 13.
Section
10A-2A-13.22 Appraisal notice and form.
(a)
If a corporate action requiring appraisal rights under Section 10A-2A-13.02(a) becomes effective, the corporation shall deliver a written
appraisal notice and form required by subsection (b) to all stockholders who satisfy the requirements of Section 10A-2A-13.21(a), (b),
or (c). In the case of a merger under Section 10A-2A-11.05, the parent shall deliver an appraisal notice and form to all record stockholders
who may be entitled to assert appraisal rights.
(b)
The appraisal notice shall be delivered no earlier than the date the corporate action specified in Section 10A-2A-13.02(a) became effective,
and no later than 10 days after that date, and must:
(1)
supply a form that (i) specifies the first date of any announcement to stockholders made before the date the corporate action became
effective of the principal terms of the proposed corporate action, (ii) if the announcement was made, requires the stockholder asserting
appraisal rights to certify whether beneficial ownership of those shares of stock for which appraisal rights are asserted was acquired
before that date, and (iii) requires the stockholder asserting appraisal rights to certify that the stockholder did not vote for or consent
to the transaction as to the class or series of stock for which appraisal is sought;
(2)
state:
(i)
where the form shall be sent and where certificates for certificated stock shall be deposited and the date by which those certificates
must be deposited, which date may not be earlier than the date by which the corporation must receive the required form under subsection
(b)(2)(ii);
(ii)
a date by which the corporation shall receive the form, which date may not be fewer than 40 nor more than 60 days after the date the
subsection (a) appraisal notice is sent, and state that the stockholder shall have waived the right to demand appraisal with respect
to the stock unless the form is received by the corporation by the specified date;
(iii)
the corporation’s estimate of the fair value of the stock;
(iv)
that, if requested in writing, the corporation will provide, to the stockholder so requesting, within 10 days after the date specified
in subsection (b)(2)(ii) the number of stockholders who return the forms by the specified date and the total number of shares of stock
owned by them; and
(v)
the date by which the notice to withdraw under Section 10A-2A-13.23 shall be received, which date shall be within 20 days after the date
specified in subsection (b)(2)(ii); and
(3)
be accompanied by a copy of this Article 13.
Section
10A-2A-13.23 Perfection of rights; right to withdraw.
(a)
A stockholder who receives notice pursuant to Section 10A-2A-13.22 and who wishes to exercise appraisal rights shall sign and return
the form sent by the corporation and, in the case of certificated stock, deposit the stockholder’s certificates in accordance with
the terms of the notice by the date referred to in the notice pursuant to Section 10A-2A-13.22(b)(2)(ii). In addition, if applicable,
the stockholder shall certify on the form whether the beneficial owner of the stock acquired beneficial ownership of the stock before
the date required to be set forth in the notice pursuant to Section 10A-2A-13.22(b)(1)(i). If a stockholder fails to make this certification,
the corporation may elect to treat the stockholder’s stock as after-acquired stock under Section 10A-2A-13.25. Once a stockholder
deposits the certificates or, in the case of uncertificated stock, returns the signed forms, that stockholder loses all rights as a stockholder,
unless the stockholder withdraws pursuant to subsection (b).
(b)
A stockholder who has complied with subsection (a) may nevertheless decline to exercise appraisal rights and withdraw from the appraisal
process by so notifying the corporation in writing by the date set forth in the appraisal notice pursuant to Section 10A-2A-13.22(b)(2)(v).
A stockholder who fails to so withdraw from the appraisal process may not thereafter withdraw without the corporation’s written
consent.
(c)
A stockholder who does not sign and return the form and, in the case of certificated stock, deposit that stockholder’s stock certificates
where required, each by the date set forth in the notice described in Section 10A-2A-13.22(b), shall not be entitled to payment under
this Article 13.
Section
10A-2A-13.24 Payment.
(a)
Except as provided in Section 10A-2A-13.25, within 30 days after the form required by Section 10A-2A-13.22(b)(2)(ii) is due, the corporation
shall pay in cash to those stockholders who complied with Section 10A-2A-13.23(a) the amount the corporation estimates to be the fair
value of their stock, plus interest.
(b)
The payment to each stockholder pursuant to subsection (a) must be accompanied by:
(1)(i)
financial statements of the corporation that issued the stock to be appraised, consisting of a balance sheet as of the end of a fiscal
year ending not more than 16 months before the date of payment, an income statement for that year, and a cash flow statement for that
year; provided that, if the annual financial statements are not reasonably available, the corporation shall provide reasonably equivalent
financial information, and (ii) the latest interim financial statements of the corporation, if any;
(2)
a statement of the corporation’s estimate of the fair value of the stock, which estimate shall equal or exceed the corporation’s
estimate given pursuant to Section 10A-2A-13.22(b)(2)(iii); and
(3)
a statement that stockholders described in subsection (a) have the right to demand further payment under Section 10A-2A-13.26 and that
if any stockholder does not do so within the time period specified in Section 10A-2A-13.26(b), the stockholder shall be deemed to have
accepted the payment under subsection (a) in full satisfaction of the corporation’s obligations under this Article 13.
Section
10A-2A-13.25 After-acquired stock.
(a)
A corporation may elect to withhold payment required by Section 10A-2A-13.24 from any stockholder who was required to, but did not certify
that beneficial ownership of all of the stockholder’s stock for which appraisal rights are asserted was acquired before the date
set forth in the appraisal notice sent pursuant to Section 10A-2A-13.22(b)(1).
(b)
If the corporation elects to withhold payment under subsection (a), it shall, within 30 days after the form required by Section 10A-2A-13.22(b)(2)(ii)
is due, notify all stockholders who are described in subsection (a):
(1)
of the information required by Section 10A-2A-13.24(b)(1);
(2)
of the corporation’s estimate of fair value pursuant to Section 10A-2A-13.24(b)(2);
(3)
that they may accept the corporation’s estimate of fair value, plus interest, in full satisfaction of their demands or demand appraisal
under Section 10A-2A-13.26;
(4)
that those stockholders who wish to accept the offer shall so notify the corporation of their acceptance of the corporation’s offer
within 30 days after receiving the offer; and
(5)
that those stockholders who do not satisfy the requirements for demanding appraisal under Section 10A-2A-13.26 shall be deemed to have
accepted the corporation’s offer.
(c)
Within 10 days after receiving the stockholder’s acceptance pursuant to subsection (b)(4), the corporation shall pay in cash the
amount it offered under subsection (b)(2) plus interest to each stockholder who agreed to accept the corporation’s offer in full
satisfaction of the stockholder’s demand.
(d)
Within 40 days after delivering the notice described in subsection (b), the corporation shall pay in cash the amount it offered to pay
under subsection (b)(2) plus interest to each stockholder described in subsection (b)(5).
Section
10A-2A-13.26 Procedure if stockholder dissatisfied with payment or offer.
(a)
A stockholder paid pursuant to Section 10A-2A-13.24 who is dissatisfied with the amount of the payment shall notify the corporation in
writing of that stockholder’s estimate of the fair value of the stock and demand payment of that estimate (less any payment under
Section 10A-2A-13.24) plus interest. A stockholder offered payment under Section 10A-2A-13.25 who is dissatisfied with that offer shall
reject the offer and demand payment of the stockholder’s stated estimate of the fair value of the stock plus interest.
(b)
A stockholder who fails to notify the corporation in writing of that stockholder’s demand to be paid the stockholder’s stated
estimate of the fair value plus interest under subsection (a) within 30 days after receiving the corporation’s payment or offer
of payment under Section 10A-2A-13.24 or Section 10A-2A-13.25, respectively, waives the right to demand payment under this section and
shall be entitled only to the payment made or offered pursuant to those respective sections.
Division
C Judicial Appraisal of Stock.
Section
10A-2A-13.30 Court action.
(a)
If a stockholder makes demand for payment under Section 10A-2A-13.26 which remains unsettled, the corporation shall commence a proceeding
within 60 days after receiving the payment demand and petition the court to determine the fair value of the stock and accrued interest.
If the corporation does not commence the proceeding within the 60-day period, it shall pay in cash to each stockholder the amount the
stockholder demanded pursuant to Section 10A-2A-13.26 plus interest.
(b)
The corporation shall commence the proceeding in the designated court, and if none, the circuit court for the county in which the corporation’s
principal office is located in this state, and if none in this state, in the circuit court for the county in which the corporation’s
most recent registered office is located.
(c)
The corporation shall make all stockholders (regardless of whether they are residents of this state) whose demands remain unsettled parties
to the proceeding as in an action against their stock, and all parties shall be served with a copy of the petition. Nonresidents may
be served by registered or certified mail or by publication as provided by law.
(d)
The jurisdiction of the court in which the proceeding is commenced under subsection (b) is plenary and exclusive. The court may appoint
one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers shall have
the powers described in the order appointing them, or in any amendment to it. The stockholders demanding appraisal rights are entitled
to the same discovery rights as parties in other civil proceedings. There shall be no right to a jury trial.
(e)
Each stockholder made a party to the proceeding is entitled to judgment (i) for the amount, if any, by which the court finds the fair
value of the stockholder’s stock exceeds the amount paid by the corporation to the stockholder for the stock, plus interest, or
(ii) for the fair value, plus interest, of the stockholder’s stock for which the corporation elected to withhold payment under
Section 10A-2A-13.25.
Section
10A-2A-13.31 Court costs and expenses.
(a)
The court in an appraisal proceeding commenced under Section 10A-2A-13.30 shall determine all court costs of the proceeding, including
the reasonable compensation and expenses of appraisers appointed by the court. The court shall assess the court costs against the corporation,
except that the court may assess court costs against all or some of the stockholders demanding appraisal, in amounts which the court
finds equitable, to the extent the court finds the stockholders acted arbitrarily, vexatiously, or not in good faith with respect to
the rights provided by this article.
(b)
The court in an appraisal proceeding may also assess the expenses of the respective parties in amounts the court finds equitable:
(1)
against the corporation and in favor of any or all stockholders demanding appraisal if the court finds the corporation did not substantially
comply with the requirements of Section 10A-2A-13.20, Section 10A-2A-13.22, Section 10A-2A-13.24, or Section 10A-2A-13.25; or
(2)
against either the corporation or a stockholder demanding appraisal, in favor of any other party, if the court finds the party against
whom expenses are assessed acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this Article 13.
(c)
If the court in an appraisal proceeding finds that the expenses incurred by any stockholder were of substantial benefit to other stockholders
similarly situated and that the expenses should not be assessed against the corporation, the court may direct that the expenses be paid
out of the amounts awarded the stockholders who were benefited.
(d)
To the extent the corporation fails to make a required payment pursuant to Section 10A-2A-13.24, Section 10A-2A-13.25, or Section 10A-2A-13.26,
the stockholder may sue directly for the amount owed, and to the extent successful, shall be entitled to recover from the corporation
all expenses of the suit.
Division
D Other Remedies.
Section
10A-2A-13.40 Other remedies limited.
(a)
The legality of a proposed or completed corporate action described in Section 10A-2A-13.02(a) may not be contested, nor may the corporate
action be enjoined, set aside or rescinded, in a legal or equitable proceeding by a stockholder after the stockholders have approved
the corporate action.
(b)
Subsection (a) does not apply to a corporate action that:
(1)
was not authorized and approved in accordance with the applicable provisions of:
(i)
Article 9, 10, 11, or 12 of this chapter or Article 8 of Chapter 1;
(ii)
the certificate of incorporation or bylaws; or
(iii)
the resolution of the board of directors authorizing the corporate action;
(2)
was procured as a result of fraud, a material misrepresentation, or an omission of a material fact necessary to make statements made,
in light of the circumstances in which they were made, not misleading;
(3)
is an interested transaction, unless it has been recommended by the board of directors in the same manner as is provided in Section 10A-2A-8.60
and has been approved by the stockholders in the same manner as is provided in Section 10A-2A-8.60 as if the interested transaction were
a director’s conflicting interest transaction; or
(4)
is approved by less than unanimous consent of the voting stockholders pursuant to Section 10A-2A-7.04 if:
(i)
the challenge to the corporate action is brought by a stockholder who did not consent and as to whom notice of the approval of the corporate
action was not effective at least 10 days before the corporate action was effected; and
(ii)
the proceeding challenging the corporate action is commenced within 10 days after notice of the approval of the corporate action is effective
as to the stockholder bringing the proceeding.
Exhibit
10.3
Lock-Up
Agreement
August
__, 2023
Ladies
and Gentlemen:
The
undersigned (the “Stockholder”) understands that: (i) AgeX Therapeutics,
Inc., a Delaware corporation (“Parent”), intends to enter into that certain Agreement and
Plan of Merger and Reorganization (the “Merger Agreement”), with Serina
Therapeutics, Inc., an Alabama corporation (the “Company”), and Canaria
Transaction Corporation, an Alabama corporation and wholly-owned subsidiary of Parent (“Merger Sub”),
pursuant to which at the effective time (the “Effective Time”), Merger Sub will be merged with and into the
Company (the “Merger”) and the separate corporate existence of Merger Sub will cease and the Company will continue
as the surviving corporation; and (ii) in connection with the Merger, the stockholders of the Company will receive shares of common stock,
par value $0.0001 per share, of Parent (“Parent Common Stock”). Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
As
a material inducement to the willingness of each of the parties to enter into the Merger Agreement and to consummate the Contemplated
Transactions, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Stockholder
hereby agrees that the Stockholder will not, subject to the exceptions set forth in this agreement (the “Lockup Agreement”),
during the period commencing upon the date hereof and ending on the date that is 180 days after the Effective Time (the “Restricted
Period”), (a) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares
of Parent Common Stock or any securities convertible into or exercisable or exchangeable for Parent Common Stock, including without limitation,
Parent Common Stock or such other securities which may be deemed to be beneficially owned by the Stockholder in accordance with the rules
and regulations of the U.S. Securities and Exchange Commission and securities of Parent which may be issued upon exercise of a stock
option or warrant or settlement of a restricted stock unit or other equity award (collectively, “Shares”),
(b) enter into any swap, short sale, hedge or other agreement that transfers, in whole or in part, any of the economic consequences of
ownership of the Shares, regardless of whether any such transaction described in clause (a) or (b) above is to be settled by delivery
of Parent Common Stock or such other securities, in cash or otherwise, or (c) make any demand for or exercise any right with respect
to the registration of any shares of Parent Common Stock or any security convertible into or exercisable or exchangeable for Parent Common
Stock, in each case other than:
(i) transfers
of Shares as bona fide charitable contributions, gifts or donations;
(ii) transfers
or dispositions of Shares to any natural person who is an immediate family member of the Stockholder, or to any trust for the direct
or indirect benefit of the Stockholder or the immediate family of the Stockholder;
(iii) transfers
or dispositions of Shares by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary
or a member of the immediate family of the Stockholder;
(iv) transfers
of Shares to stockholders, direct or indirect affiliates (within the meaning set forth in Rule 405 under the Securities Act), current
or former partners (general or limited), members or managers of the Stockholder, as applicable, or to the estates of any such stockholders,
affiliates, partners, members or managers, or to another corporation, partnership, limited liability company or other business entity
that controls, is controlled by or is under common control with the Stockholder or, if the Stockholder is a natural person, is controlled
by a member of the Stockholder’s immediate family;
(v) transfers
that occur by operation of law pursuant to a qualified domestic relations order or in connection with a divorce settlement;
(vi) transfers
or dispositions not involving a change in beneficial ownership;
(vii) if
the Stockholder is a trust, transfers or dispositions to any beneficiary of the Stockholder or the estate of any such beneficiary; provided
that, in the case of any transfer or distribution of this clause (vii) such transfer is not for value and each donee, heir, beneficiary
or other transferee or distributee shall sign and deliver to Parent a lock up agreement in the form of this Lockup Agreement with respect
to the shares of Parent Common Stock or such other securities that have been transferred or distributed;
(viii) transfers
pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of the Parent’s
capital stock involving a change of control of the Parent, provided that in the event that such tender offer, merger, consolidation
or other such transaction is not completed, the Shares shall remain subject to the restrictions contained in this Lockup Agreement;
(ix) any
sales in open market transactions (including, without limitation, the establishment of a 10b5-1 Plan (as defined below) and any sales
pursuant to such 10b5-1 Plan) during the Restricted Period to generate such amount of net proceeds to the Stockholder from such sales
(after deducting commissions) in an aggregate amount up to the total amount of taxes or estimated taxes (as applicable) that become due
as a result of the vesting and/or settlement of restricted stock units held by the Stockholder that are scheduled to vest and/or settle
immediately prior to or during the Restricted Period; provided, that in each case of clauses (i)-(vii), (a) other than
with respect to clause (iv), no filing by any party (including any donor, donee, transferor or transferee, distributor or distributee)
under the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with such transfer or
distribution (other than filings made in respect of involuntary transfers or dispositions or a filing on a Form 5 made after the expiration
of the Restricted Period), (b) other than with respect to clause (iv), any such transfer or distribution shall not involve a disposition
for value, and (c) the transferee or donee agrees in writing to be bound by the terms and conditions of this Lockup Agreement and either
the Stockholder or the transferee or donee provides Parent with a copy of such agreement promptly upon consummation of any such transfer;
provided further, that in the case of clause (ix), filings under Section 16(a) of the Exchange Act shall only be permissible
if such filing clearly indicates in the footnotes thereto that the filing relates to securities being sold to generate net proceeds up
to the total amount of taxes or estimated taxes (as applicable) that become due as a result of the vesting and/or settlement of Parent
equity awards. For purposes of this Lockup Agreement, “immediate family” shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin.
Notwithstanding
the restrictions imposed by this Lockup Agreement, the Stockholder may (a) exercise an option or warrant to purchase Shares or settle
a restricted stock unit or other equity award (including a net or cashless exercise of such option or warrant provided
the Shares are transferred to Parent and not sold on the open market) and provided further, that the underlying Shares
shall continue to be subject to the restrictions on transfer set forth in this Lockup Agreement, (b) transfer Shares to Parent to cover
tax withholding obligations of the Stockholder in connection with the vesting, settlement or exercise of such options, warrants, restricted
stock units or other equity awards, as applicable, (c) establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act (“10b5-1
Plan”) for the transfer of Shares, provided that such plan does not provide for any transfers of Shares during
the Restricted Period (except as provided in clause (ix) above) and, provided further, that, no filing under the Exchange
Act or other public announcement shall be required or shall be made voluntarily in connection with the establishment of such a plan,
(d) transfer Shares to Parent pursuant to arrangements under which Parent has the option to repurchase such Shares, or (e) transfer or
dispose of Shares acquired on the open market following the Effective Time.
Any
attempted transfer in violation of this Lockup Agreement will be of no effect and null and void, regardless of whether the purported
transferee has any actual or constructive knowledge of the transfer restrictions set forth in this Lockup Agreement, and will not be
recorded on the stock transfer books of Parent. In order to ensure compliance with the restrictions referred to herein, the Stockholder
agrees that Parent may issue appropriate “stop transfer” certificates or instructions. Parent may cause the legend set forth
below, or a legend substantially equivalent thereto, to be placed upon any certificate(s) or other documents or instruments evidencing
ownership of the Shares:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND MAY ONLY BE TRANSFERRED IN COMPLIANCE WITH A LOCK-UP AGREEMENT, A COPY OF WHICH
IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.
The
Stockholder hereby represents and warrants that the Stockholder has full power and authority to enter into this Lockup Agreement. The
Stockholder acknowledges and agrees that Parent, Merger Sub and the Company have not provided any recommendation or investment advice
nor have Parent, Merger Sub, and the Stockholder has consulted his, her or its own legal, accounting, financial, regulatory and tax advisors
to the extend deemed appropriate. All authority conferred or agreed to be conferred and any obligations of the Stockholder under this
Lockup Agreement will be binding upon the successors, assigns, heirs or personal representatives of the Stockholder.
In
the event that during the Restricted Period any holder of Parent’s securities that is subject to a substantially similar agreement
entered into by such holder, other than the Stockholder, is permitted by Parent to sell or otherwise transfer or dispose of shares of
Parent Common Stock for value other than as permitted by this or a substantially similar agreement entered into by such holder, the same
percentage of shares of Parent Common Stock held by the Stockholder shall be immediately and fully released on the same terms from any
remaining restrictions set forth herein (the “Pro-Rata Release”); provided, however,
that such Pro-Rata Release shall not be applied (i) unless and until permission has been granted by Parent to an equity holder or equity
holders to sell or otherwise transfer or dispose of all or a portion of such equity holders’ shares of Parent Common Stock in an
aggregate amount in excess of 1% of the number of shares of Parent Common Stock originally subject to a substantially similar agreement
or (ii) if (x) the release or waiver is effected solely to permit a transfer not for consideration and (y) the transferee has agreed
in writing to be bound by the same terms described in this Lockup Agreement to the extend and for the duration that such terms remain
in effect at the time of the transfer.
Upon
the release of any Shares from this Lockup Agreement, Parent will cooperate with the Stockholder to facilitate the timely preparation
and delivery of certificates or the establishment of book entry positions at the Parent’s transfer agent representing the Shares
without the restrictive legend above and the withdrawal of any stop transfer instructions at the Parent’s transfer agent.
The
Stockholder understands that each of Parent and the Company is relying upon this Lockup Agreement in proceeding toward consummation of
the Merger. Whether or not the Merger actually occurs depends on a number of factors, including market conditions. The Stockholder further
understands that this Lockup Agreement is coupled with an interest, is irrevocable (and as such shall survive and not be affected by
the death, incapacity, mental illness or insanity of the Stockholder, as applicable) and is binding upon the Stockholder, and the Stockholder’s
heirs, legal representatives, successors and assigns.
This
Lockup Agreement and any claim, controversy or dispute arising under or related to this Lockup Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the conflict of laws principles thereof.
The
Stockholder understands that if the Merger Agreement is terminated in accordance with its terms, the Stockholder will be released from
all obligations under this Lockup Agreement.
This
Lockup Agreement may be executed by electronic (i.e., PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000,
e.g., www.docusign.com or www.echosign.com) transmission, and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
Irrespective
of negotiations among the parties or the exchanging of drafts of this Lockup Agreement, this Lockup Agreement shall not constitute or
be deemed to evidence a contract, agreement, arrangement or understanding between the parties hereto unless and until (a) the Company
Board has approved, for purposes of any applicable anti-takeover laws and regulations, and any applicable provision of the Company’s
organizational documents, the Merger, (b) the Merger Agreement is executed by all parties thereto, and (c) this Agreement is executed
by all parties hereto.
[Signature
Page Follows]
IN
WITNESS WHEREOF, each of the parties has caused this Lock-up Agreement to be duly executed on its behalf as of the day and year first
above written.
| |
AGEX
THERAPEUTICS, INC. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
|
| |
CANARIA
TRANSACTION CORPORATION |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| [Signature Page to Lock-Up Agreement] |
IN
WITNESS WHEREOF, each of the parties has caused this Lock-up Agreement to be duly executed on its behalf as of the day and year first
above written.
| |
Serina
Therapeutics, Inc. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| [Signature Page to Lock-Up Agreement] |
IN
WITNESS WHEREOF, each of the parties has caused this Lock-up Agreement to be duly executed on its behalf as of the day and year first
above written.
| |
Print Name of Stockholder: |
|
| |
|
Signature (for individuals): |
| |
|
Signature (for entities): |
| |
|
By: |
|
| |
|
Name: |
|
| |
|
Title: |
|
| Address
for Notice: |
|
| Address: ____________________________ |
|
| ___________________________________ |
|
| ___________________________________ |
|
| Telephone
No.: _______________________ |
|
| Email: ______________________________ |
|
| [Signature Page to Lock-Up Agreement] |
Exhibit
10.4
Lock-Up
Agreement
August
__, 2023
Ladies
and Gentlemen:
The
undersigned stockholder or option holder (the “Stockholder”) understands that: (i) AgeX
Therapeutics, Inc., a Delaware corporation (“Parent”), intends to enter into that certain
Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), with Serina
Therapeutics, Inc., an Alabama corporation (the “Company”), and Canaria Transaction Corporation,
an Alabama corporation and wholly-owned subsidiary of Parent (“Merger Sub”), pursuant to which at the effective
time (the “Effective Time”), Merger Sub will be merged with and into the Company (the “Merger”)
and the separate corporate existence of Merger Sub will cease and the Company will continue as the surviving corporation; and (ii) in
connection with the Merger, the stockholders of the Company will receive shares of common stock, par value $0.0001 per share, of Parent
(“Parent Common Stock”). Capitalized terms used but not otherwise defined herein shall have the respective
meanings ascribed to such terms in the Merger Agreement.
As
a material inducement to the willingness of each of the parties to enter into the Merger Agreement and to consummate the Contemplated
Transactions, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Stockholder
hereby agrees that the Stockholder will not, subject to the exceptions set forth in this agreement (the “Lockup Agreement”),
during the period commencing upon the date the Merger Agreement is executed and ending on the date that is 180 days after the Effective
Time (the “Restricted Period”), (a) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of Parent Common Stock or any securities convertible into or exercisable or exchangeable for Parent Common
Stock, including without limitation, Parent Common Stock or such other securities which may be deemed to be beneficially owned by the
Stockholder in accordance with the rules and regulations of the U.S. Securities and Exchange Commission and securities of Parent which
may be issued upon exercise of a stock option or warrant or settlement of a restricted stock unit or other equity award (collectively,
“Shares”), (b) enter into any swap, short sale, hedge or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Shares, regardless of whether any such transaction described in clause (a) or (b)
above is to be settled by delivery of Parent Common Stock or such other securities, in cash or otherwise, or (c) make any demand for
or exercise any right with respect to the registration of any shares of Parent Common Stock or any security convertible into or exercisable
or exchangeable for Parent Common Stock, in each case other than:
(i) transfers
of Shares as bona fide charitable contributions, gifts or donations;
(ii) transfers
or dispositions of Shares to any natural person who is an immediate family member of the Stockholder, or to any trust for the direct
or indirect benefit of the Stockholder or the immediate family of the Stockholder;
(iii) transfers
or dispositions of Shares by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary
or a member of the immediate family of the Stockholder;
(iv) transfers
of Shares to stockholders, direct or indirect affiliates (within the meaning set forth in Rule 405 under the Securities Act), current
or former partners (general or limited), members or managers of the Stockholder, as applicable, or to the estates of any such stockholders,
affiliates, partners, members or managers, or to another corporation, partnership, limited liability company or other business entity
that controls, is controlled by or is under common control with the Stockholder or, if the Stockholder is a natural person, is controlled
by a member of the Stockholder’s immediate family;
(v) transfers
that occur by operation of law pursuant to a qualified domestic relations order or in connection with a divorce settlement;
(vi) transfers
or dispositions not involving a change in beneficial ownership;
(vii) if
the Stockholder is a trust, transfers or dispositions to any beneficiary of the Stockholder or the estate of any such beneficiary; provided
that, in the case of any transfer or distribution of this clause (vii) such transfer is not for value and each donee, heir, beneficiary
or other transferee or distributee shall sign and deliver to Parent a lock up agreement in the form of this Lockup Agreement with respect
to the shares of Parent Common Stock or such other securities that have been transferred or distributed;
(viii) transfers
pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of the Parent’s
capital stock involving a change of control of the Parent, provided that in the event that such tender offer, merger, consolidation
or other such transaction is not completed, the Shares shall remain subject to the restrictions contained in this Lockup Agreement;
(ix) any
sales in open market transactions (including, without limitation, the establishment of a 10b5-1 Plan (as defined below) and any sales
pursuant to such 10b5-1 Plan) during the Restricted Period to generate such amount of net proceeds to the Stockholder from such sales
(after deducting commissions) in an aggregate amount up to the total amount of taxes or estimated taxes (as applicable) that become due
as a result of the vesting and/or settlement of restricted stock units held by the Stockholder that are scheduled to vest and/or settle
immediately prior to or during the Restricted Period; provided, that in each case of clauses (i)-(vii), (a) other than
with respect to clause (iv), no filing by any party (including any donor, donee, transferor or transferee, distributor or distributee)
under the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with such transfer or
distribution (other than filings made in respect of involuntary transfers or dispositions or a filing on a Form 5 made after the expiration
of the Restricted Period), (b) other than with respect to clause (iv), any such transfer or distribution shall not involve a disposition
for value, and (c) the transferee or donee agrees in writing to be bound by the terms and conditions of this Lockup Agreement and either
the Stockholder or the transferee or donee provides Parent with a copy of such agreement promptly upon consummation of any such transfer;
provided further, that in the case of clause (ix), filings under Section 16(a) of the Exchange Act shall only be permissible
if such filing clearly indicates in the footnotes thereto that the filing relates to securities being sold to generate net proceeds up
to the total amount of taxes or estimated taxes (as applicable) that become due as a result of the vesting and/or settlement of Parent
equity awards. For purposes of this Lockup Agreement, “immediate family” shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin.
Notwithstanding
the restrictions imposed by this Lockup Agreement, the Stockholder may (a) exercise an option or warrant to purchase Shares or settle
a restricted stock unit or other equity award (including a net or cashless exercise of such option or warrant provided
the Shares are transferred to Parent and not sold on the open market) and provided further, that the underlying Shares
shall continue to be subject to the restrictions on transfer set forth in this Lockup Agreement, (b) transfer Shares to Parent to cover
tax withholding obligations of the Stockholder in connection with the vesting, settlement or exercise of such options, warrants, restricted
stock units or other equity awards, as applicable, (c) establish a trading plan pursuant to Rule 10b5-1 under the Exchange Act (“10b5-1
Plan”) for the transfer of Shares, provided that such plan does not provide for any transfers of Shares during
the Restricted Period (except as provided in clause (ix) above) and, provided further, that, no filing under the Exchange
Act or other public announcement shall be required or shall be made voluntarily in connection with the establishment of such a plan,
(d) transfer Shares to Parent pursuant to arrangements under which Parent has the option to repurchase such Shares, or (e) transfer or
dispose of Shares acquired on the open market following the Effective Time.
Any
attempted transfer in violation of this Lockup Agreement will be of no effect and null and void, regardless of whether the purported
transferee has any actual or constructive knowledge of the transfer restrictions set forth in this Lockup Agreement, and will not be
recorded on the stock transfer books of Parent. In order to ensure compliance with the restrictions referred to herein, the Stockholder
agrees that Parent may issue appropriate “stop transfer” certificates or instructions. Parent may cause the legend set forth
below, or a legend substantially equivalent thereto, to be placed upon any certificate(s) or other documents or instruments evidencing
ownership of the Shares:
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AND MAY ONLY BE TRANSFERRED IN COMPLIANCE WITH A LOCK-UP AGREEMENT, A COPY OF WHICH
IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY.
The
Stockholder hereby represents and warrants that the Stockholder has full power and authority to enter into this Lockup Agreement. The
Stockholder acknowledges and agrees that Parent, Merger Sub and the Company have not provided any recommendation or investment advice
nor have Parent, Merger Sub, and the Stockholder has consulted his, her or its own legal, accounting, financial, regulatory and tax advisors
to the extend deemed appropriate. All authority conferred or agreed to be conferred and any obligations of the Stockholder under this
Lockup Agreement will be binding upon the successors, assigns, heirs or personal representatives of the Stockholder.
In
the event that during the Restricted Period any holder of Parent’s securities that is subject to a substantially similar agreement
entered into by such holder, other than the Stockholder, is permitted by Parent to sell or otherwise transfer or dispose of shares of
Parent Common Stock for value other than as permitted by this or a substantially similar agreement entered into by such holder, the same
percentage of shares of Parent Common Stock held by the Stockholder shall be immediately and fully released on the same terms from any
remaining restrictions set forth herein (the “Pro-Rata Release”); provided, however,
that such Pro-Rata Release shall not be applied (i) unless and until permission has been granted by Parent to an equity holder or equity
holders to sell or otherwise transfer or dispose of all or a portion of such equity holders’ shares of Parent Common Stock in an
aggregate amount in excess of 1% of the number of shares of Parent Common Stock originally subject to a substantially similar agreement
or (ii) if (x) the release or waiver is effected solely to permit a transfer not for consideration and (y) the transferee has agreed
in writing to be bound by the same terms described in this Lockup Agreement to the extend and for the duration that such terms remain
in effect at the time of the transfer.
Upon
the release of any Shares from this Lockup Agreement, Parent will cooperate with the Stockholder to facilitate the timely preparation
and delivery of certificates or the establishment of book entry positions at the Parent’s transfer agent representing the Shares
without the restrictive legend above and the withdrawal of any stop transfer instructions at the Parent’s transfer agent.
The
Stockholder understands that each of Parent and the Company is relying upon this Lockup Agreement in proceeding toward consummation of
the Merger. Whether or not the Merger actually occurs depends on a number of factors, including market conditions. The Stockholder further
understands that this Lockup Agreement is coupled with an interest, is irrevocable (and as such shall survive and not be affected by
the death, incapacity, mental illness or insanity of the Stockholder, as applicable) and is binding upon the Stockholder, and the Stockholder’s
heirs, legal representatives, successors and assigns.
This
Lockup Agreement and any claim, controversy or dispute arising under or related to this Lockup Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the conflict of laws principles thereof.
The
Stockholder understands that if the Merger Agreement is terminated in accordance with its terms, the Stockholder will be released from
all obligations under this Lockup Agreement.
This
Lockup Agreement may be executed by electronic (i.e., PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000,
e.g., www.docusign.com or www.echosign.com) transmission, and any counterpart so delivered shall be deemed to have been duly and validly
delivered and be valid and effective for all purposes.
Irrespective
of negotiations among the parties or the exchanging of drafts of this Lockup Agreement, this Lockup Agreement shall not constitute or
be deemed to evidence a contract, agreement, arrangement or understanding between the parties hereto unless and until (a) the Company
Board has approved, for purposes of any applicable anti-takeover laws and regulations, and any applicable provision of the Company’s
organizational documents, the Merger, (b) the Merger Agreement is executed by all parties thereto, and (c) this Agreement is executed
by all parties hereto.
[Signature
Page Follows]
IN
WITNESS WHEREOF, each of the parties has caused this Lock-up Agreement to be duly executed on its behalf as of the day and year first
above written.
| |
AGEX THERAPEUTICS, INC. |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
|
| |
CANARIA TRANSACTION CORPORATION |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| [Signature Page to Lock-Up Agreement] |
IN
WITNESS WHEREOF, each of the parties has caused this Lock-up Agreement to be duly executed on its behalf as of the day and year first
above written.
| |
Serina
Therapeutics, Inc. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
| [Signature Page to Lock-Up Agreement] |
IN
WITNESS WHEREOF, each of the parties has caused this Lock-up Agreement to be duly executed on its behalf as of the day and year first
above written.
| |
Print Name of Stockholder: |
|
| |
|
Signature (for individuals): |
| |
|
Signature (for entities): |
| |
|
By: |
|
| |
|
Name: |
|
| |
|
Title: |
|
| Address
for Notice: |
|
| Address: ___________________________ |
|
| __________________________________ |
|
| __________________________________ |
|
| Telephone
No.: ______________________ |
|
| Email: _____________________________ |
|
| [Signature Page to Lock-Up Agreement] |
Exhibit
10.5
29
August 2023
AgeX
Therapeutics, Inc.
1101
Marina Village Parkway, Suite 201
Alameda,
California 94501
Serina
Therapeutics, Inc.
601
Genome Way, Suite 2001
Huntsville,
Alabama 35806
This
letter agreement (this “Letter Agreement”) is entered into pursuant to Section 6.5 of, and in connection with the
consummation of the transactions contemplated by, that certain Agreement and Plan of Merger and Reorganization, dated as of August 29,
2023 (the “Merger Agreement”), by and among AgeX Therapeutics, Inc., a Delaware corporation (“Parent”),
Canaria Transaction Corporation, an Alabama corporation and wholly owned subsidiary of Parent, and Serina Therapeutics, Inc., an Alabama
corporation (the “Company”). Juvenescence Limited (“Juvenescence”) is a significant securityholder
of Parent and as a result, has a significant interest in the consummation of the Merger. This Letter Agreement shall be deemed to have
been entered into immediately prior to the consummation of the Merger. Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Merger Agreement.
In
consideration for and as a material inducement to Parent and the Company consummating the Merger, Juvenescence, Parent, and the Company
hereby agree as follows:
1.
Out of the Money Parent Warrants.
Juvenescence
agrees that, effective immediately before the Effective Time, it hereby relinquishes and cancels, without any further action by Juvenescence,
Parent, Company or any other Person or further consideration therefor, all Out of the Money Parent Warrants held by Juvenescence as of
such time and Juvenescence and Parent will enter into reasonable documentation with respect to terminating such Out of the Money Parent
Warrants.
2.
Post-Merger Warrants.
| (a) | Subject
to Section 2(b), Juvenescence shall be obligated to exercise for cash the Post-Merger Warrants
in one or more exercises for the tranches labeled “First Tranche,” “Second
Tranche” and “Third Tranche” in accordance with the below schedule. |
| Tranche |
|
Number
of Post-Merger Warrants Required to be Exercised |
|
Required
Date of Exercise |
| First
Tranche |
|
At
least one-third (1/3) of all of the Post-Merger Warrants, owned by Juvenescence as of the Closing Date.
|
|
On
or before May 31, 2024. |
| Second
Tranche |
|
At
least one-third (1/3) of all of the Post-Merger Warrants, owned by Juvenescence as of the Closing Date.
|
|
On
or before November 30, 2024. |
| Third
Tranche |
|
At
least one-third (1/3) of all of the Post-Merger Warrants, owned by Juvenescence as of the Closing Date.
|
|
On
or before June 30, 2025.
|
| (b) | Juvenescence
shall have the right to exercise the Post-Merger Warrants prior to any dates set forth in
Section 2(a). |
3.
Board Composition. The Parties shall use reasonable best efforts and take all necessary action so that the Persons listed in Exhibit
A are elected or appointed, as applicable, to the positions of directors of Parent, as set forth therein, to serve in such positions
effective as of the Effective Time, for such term and Class as set forth next to the director’s name, and in all cases until successors
are duly appointed and qualified in accordance with applicable Law.
4.
Parent Preferred Stock. Juvenescence agrees that it (i) owns all of the Parent Preferred Stock, (ii) will not transfer any Parent
Preferred Stock, and (iii) will take all actions necessary to convert all of the Parent Preferred Stock into Parent Common Stock prior
to the NYSE Reverse Split. Parent agrees that it will take all actions necessary to allow a vote to be taken by the stockholders of Parent
to approve the conversion of the Parent Preferred Stock into Parent Common Stock.
5.
Security Agreements, Guarantees, Pledges, Assignments, and other Collateral. Subject to paragraph 6 of this Letter Agreement,
Juvenescence agrees that it will release all security interests, guarantees, pledges, assignments, and other forms of collateral it may
have or have had in the assets of Parent which assets were secured by any of the Parent Notes.
6.
Parent Legacy Note/Newco. Juvenescence agrees that any Parent Legacy Note and certain assets agreed to by Parent, Juvenescence,
and Company, which agreed upon assets secure the Parent Legacy Note, shall be contributed to Newco (the “Newco Contribution”)
and Juvenescence shall, after such contribution, have no further claim on any remaining assets of Parent, shall release any security
interest in any remaining assets of Parent, and will look solely to Newco and its assets for repayment and security of the Parent Legacy
Note.
7.
Assignment. Juvenescence may assign its obligations under this Letter Agreement, in whole or in part, to any Affiliate of, or
third party nominated by Juvenescence, provided that Juvenescence shall remain responsible for the obligations of Juvenescence under
this Letter Agreement. Except as provided in the immediately preceding sentence, neither party may assign, transfer, or delegate any
or all of its rights or obligations under this Letter Agreement whether directly or indirectly by way of merger, conversion, consolidation,
division, transfer, domestication, operation of law, or otherwise.
8.
Severability. Each provision of this Letter Agreement will be considered severable and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or
illegality will not impair the operation of or affect those portions of this Letter Agreement that are valid, enforceable and legal.
9.
Amendments. This Letter Agreement may not be modified or amended or the rights of any party hereunder waived unless such modification,
amendment or waiver is effected by a written instrument expressly modifying, amending or waiving this Letter Agreement or the rights
of a party hereunder, which instrument is executed after the Merger by all the parties hereto, and which instrument is unanimously approved
by the post-Merger board of directors of Parent.
10.
Counterparts. This Letter Agreement may be executed in any number of counterparts, any one of which need not contain the signatures
of more than one party, but all of such counterparts together will constitute one agreement. Signatures of parties transmitted by facsimile
or as PDF attachments to emails shall be deemed to be their original signatures for any purpose whatsoever.
11.
Governing Law. This Letter Agreement will be governed by and construed in accordance with the laws of the State of Delaware without
regard to the principles of conflicts of laws thereof.
12.
Termination. This Letter Agreement shall terminate and be of no further force or effect upon the termination of the Merger Agreement.
(Signature
page follows)
Please
confirm your agreement to the foregoing by signing where indicated below and returning a copy of this letter to Parent.
| |
Sincerely, |
| |
|
|
| |
Juvenescence
Limited |
| |
|
|
| |
By:
|
/s/
Denham Eke |
| |
Name: |
Denham
Eke |
| |
Title: |
Director |
| AGREED
AND ACCEPTED: |
|
| |
|
|
| AGEX
THERAPEUTICS, inc. |
|
| |
|
|
| By:
|
/s/
Joanne Hackett, Ph.D. |
|
| Name:
|
Joanne
Hackett, Ph.D. |
|
| Title:
|
Interim
Chief Executive Officer |
|
| |
|
|
| SERINA
THERAPEUTICS, Inc. |
|
| |
|
|
| By:
|
/s/
Randall Moreadith |
|
| Name:
|
Randall
Moreadith |
|
| Title:
|
President
and Chief Executive Officer |
|
Exhibit
A
Board
Designees
Class
I (Term Ending on the Annual Meeting of the Stockholders in 2024)
Independent
Director #1
Independent
Director #2
President/CEO
Class
II (Term Ending on the Annual Meeting of the Stockholders in 2025)
Milton
Harris
Steve
Ledger
Class
III (Term Ending on the Annual Meeting of the Stockholders in 2026)
Greg
Bailey (to be Chair of the Board)
Richard
Marshall
Exhibit 99.1
Serina
Therapeutics and AgeX Therapeutics Enter into Merger Agreement
August
30, 2023
| ■ | Merger
to result in NYSE American-listed company focused on developing therapeutics based on Serina’s
proprietary POZ PlatformTM delivery technology |
| ■ | Lead
program of the combined company will be SER-252 (POZ-apomorphine) for the treatment of advanced
Parkinson’s Disease |
| ■ | Focus
on expanding POZ PlatformTM partnering collaborations across immunology, cancer
Rx, and gene therapy fields |
HUNTSVILLE,
Ala. & ALAMEDA, Calif. – (BUSINESS WIRE) – August 30, 2023 – Serina Therapeutics, Inc. (“Serina”),
a privately-held, clinical-stage biotechnology company developing a pipeline of therapies for the treatment of Parkinson’s Disease
and other neurological diseases, entered into a merger agreement with AgeX Therapeutics, Inc. (NYSE American: AGE) (“AgeX”)
on August 29, 2023, under which Serina will merge with a wholly-owned subsidiary of AgeX in an all-stock transaction. The combined
company will continue under the Serina Therapeutics name and will focus on advancing Serina’s pipeline of small molecule drug candidates
targeting central nervous system (“CNS”) indications, enabled by the company’s proprietary POZ PlatformTM
delivery technology. In addition to advancing the company’s wholly-owned pipeline assets, Serina is working with companies in the
pharmaceutical industry currently advancing pre-clinical studies exploring POZ polymer lipid-nanoparticles (“LNPs”) in next
generation RNA vaccines.
“The
merger with AgeX positions Serina to advance our CNS pipeline assets and expand our platform partnering opportunities,” said
J. Milton Harris, PhD, Co-Founder and Chair of the Board of Serina. “We believe it represents the best path forward for
Serina in accessing transformative capital to advance our platform technology. As a board director of the combined company, I look forward
to collaborating with our new partners AgeX and Juvenescence, as we continue the work of translating our science into innovative therapeutics.”
“We
are delighted to announce the proposed merger with Serina,” said Joanne M. Hackett, PhD, Chairperson and Interim Chief Executive
Officer of AgeX. “The AgeX team thoroughly reviewed and evaluated numerous strategic alternatives for creating stockholder value,
and we believe this transaction with Serina presented the most compelling option for our stockholders. We see exciting potential to generate
novel drug candidates with the POZ PlatformTM delivery technology.”
“Serina
merging with AgeX is an important step towards recognizing the potential to develop the POZ PlatformTM to deliver novel medicines
and treatment modalities,” said Dr. Richard Marshall, Chief Executive Officer of Juvenescence Limited (“Juvenescence”).
“We plan to leverage our deep pharmaceutical expertise and network to assist the combined company to reach its goal in maximizing
value for stockholders.”
The
combined company will focus on advancing Serina’s lead drug candidate (SER-252, POZ-apomorphine) for the treatment of advanced
Parkinson’s Disease through pre-clinical studies, with the goal of submitting an investigational new drug submission (“IND”)
to the Food and Drug Administration for the initiation of a Phase I clinical trial during the fourth quarter of 2024. Serina has two
other pipeline assets that are positioned to enter IND enabling studies, SER-227 (POZ-buprenorphine) for certain post-operative pain
indications and SER-228 (POZ-cannabidiol) for refractory epilepsy indications. Additionally, the combined company will focus on expanding
Serina’s LNP and antibody drug conjugate (“ADC”) partnering collaborations.
About
the Transaction, Management and Organization
Under
the terms of the merger agreement, pending stockholder approval of the transaction, Serina will merge with a wholly-owned subsidiary
of AgeX, and stockholders of Serina will receive shares of AgeX common stock (“merger”). AgeX following the merger is referred
to herein as the “combined company.” The merger has been approved by the boards of directors of both companies and
is expected to close in the first quarter of 2024, subject to customary closing conditions.
Upon
completion of the merger, pre-merger AgeX stockholders are expected to own approximately 25% of the newly combined company while pre-merger
Serina stockholders are expected to own approximately 75% of the newly combined company. The final percentage of the combined company
owned by pre-merger Serina stockholders and pre-merger AgeX stockholders upon completion of the merger may be subject to certain adjustments
and assumptions. As part of the merger, pre-merger AgeX stockholders will be issued Post-Merger Warrants. The Post-Merger Warrants issued
to AgeX stockholder, Juvenescence, have a cash exercise requirement that will provide an additional $15 million in capital to the combined
company in three equal tranches over the term of the warrant, which expires July 31, 2025. AgeX stockholders that exercise the Post-Merger
Warrants will additionally receive Incentive Warrants that expire four (4) years after the merger closing date. The terms and conditions
for each type of warrant will be further detailed in the forms of warrant agreements that will be negotiated between the parties prior
to the merger closing date.
Prior
to the execution of the merger agreement, AgeX invested $10 million in Serina through the purchase of a Senior Convertible Loan Note
(“CLN”) described on the Current Report on Form 8-K that AgeX filed with the U.S. Securities and Exchange Commission (“SEC”)
on March 15, 2023. Immediately prior to completion of the merger, the CLN will be converted into Serina capital stock as a capital contribution.
It is expected that the funds provided by the CLN, together with the additional $15 million of proceeds from the Juvenescence required
warrant cash exercises, will provide working capital for the combined company to help fund operations into calendar year 2026.
Following
the merger, it is anticipated that the combined company will be led by a new Chief Executive Officer (“CEO”). Current members
of the executive team of Serina are expected to continue in key leadership roles, including Dr. Randall Moreadith as the Chief Science
Officer, and Dr. Tacey Viegas as Chief Operating Officer and Secretary. Serina’s current Chief Financial Officer (“CFO”)
Steve Ledger is expected to serve as the interim CEO of the combined company until such time as the new CEO is hired. AgeX’s current
CFO, Andrea Park, is expected to serve as the interim CFO and Chief Accounting Officer of the combined company until such time as the
new CFO is hired, and is then expected to continue in the role of Chief Accounting Officer. The board of directors will be comprised
of seven directors and are expected to include AgeX director Dr. Gregory Bailey, Juvenescence CEO Dr. Richard Marshall,
Serina’s directors Dr. J. Milton Harris and Steve Ledger, and the Buck Institute for Aging’s Vice President of Business
and Technology Advancement Remy Gross III. Two additional directors will be appointed in accordance with the merger agreement to fill
the remaining seats on the board of directors.
Upon
completion of the transaction, the combined company will operate under the Serina Therapeutics name, and the combined company’s
common stock is expected to trade on the NYSE American under the ticker symbol “SER.” The corporate headquarters will
be in Huntsville, Alabama.
Gibson,
Dunn & Crutcher LLP is providing legal counsel to AgeX. Bradley Arant Boult Cummings LLP is legal counsel to Serina.
About
Serina Therapeutics
Serina
is a clinical-stage biotechnology company developing a pipeline of wholly-owned drug product candidates to treat neurological diseases
and pain. Serina’s POZ PlatformTM delivery technology is engineered to provide greater control in drug loading and more
precision in the rate of release of attached drugs, enabling the potential of certain challenging small molecules, while addressing the
limitations of polyethylene glycol (“PEG”) and other biocompatible polymers. Our POZ PlatformTM partners are at
the forefront in advancing LNP delivery technology to develop novel RNA therapeutics. Serina is headquartered in Huntsville, Alabama
on the campus of the HudsonAlpha Institute of Biotechnology. For more information, please visit https://serinatherapeutics.com.
About
AgeX Therapeutics
AgeX
has been focused on developing and commercializing innovative therapeutics to treat human diseases to increase health span and combat
the effects of aging. For more information, please visit http://agexinc.com.
Cautionary
Statement Regarding Forward-Looking Statements
Certain
statements contained in this communication regarding matters that are not historical facts are forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities
and Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995, known as the PSLRA. These include statements
regarding the anticipated completion and effects of the proposed merger and related timing, pro forma descriptions of the combined company,
Serina’s and the combined company’s planned preclinical and clinical programs, including planned clinical trials, the potential
of Serina’s product candidates, the anticipated cash expected from warrant exercises and the ability for proceeds to fund the operations
of the combined company for as long as anticipated, the expected trading of the combined company’s stock on the NYSE American under
the ticker symbol “SER,” management of the combined company and other statements regarding management’s intentions,
plans, beliefs, expectations or forecasts for the future. All forward-looking statements are based on assumptions or judgments about
future events and economic conditions that may or may not be correct or necessarily take place and that are by their nature subject to
significant risks, uncertainties and contingencies. You are cautioned not to place undue reliance on these forward-looking statements.
No forward-looking statement can be guaranteed, and actual results may differ materially from those projected. Statements that contain
words such as “anticipates,” “believes,” “plans,” “expects,” “projects,”
“future,” “intends,” “may,” “will,” “should,” “could,” “estimates,”
“predicts,” “potential,” “continue,” “guidance,” and similar expressions to identify
these forward-looking statements are intended to be covered by the safe-harbor provisions of the PSLRA.
There
are a number of risks and uncertainties that could cause actual results to differ materially from the forward-looking statements included
in this communication. With respect to the merger, these risks and uncertainties include: the possibility that stockholders of AgeX or
Serina may not approve the merger; one or more conditions to consummating the merger may not be satisfied; one or more material agreements
that may be entered into in connection with the merger may be terminated by a party to the agreement; AgeX or the combined company may
be unable to obtain approval to list on the NYSE American the shares of AgeX common stock expected to be issued pursuant to the merger;
and the closing of the merger might be delayed or not occur at all. In addition, the merger could cause AgeX to face additional risks,
including risks associated with conducting and financing Serina’s current or future research and product development programs,
including risks that those research and development programs will not result in the development of products or technologies with the
desired clinical utility, benefits, or market acceptance; risks associated with conducting clinical trials of Serina product candidates
and obtaining Food and Drug Administration or other regulatory approvals to market product candidates, including risks with respect to
the timing of initiation of Serina’s planned clinical trials, the timing of the availability of data or other results from clinical
trials, and the timing of any planned investigational new drug application or new drug application; risks associated with the combined
company’s ability to identify additional products or product candidates with significant commercial potential; risks associated
with AgeX’s, Serina’s or the combined company’s ability to protect its intellectual property position; product liability
risks; the risk that the cash balance of the combined company following the closing of the merger will be lower than expected or reduced;
the risk that the combined company’s anticipated sources and related timing of financing following the closing of the merger will
not provide proceeds necessary to fund the operations of the combined company for as long as anticipated; the risk that the transactions
contemplated by the Side Letter entered into by AgeX, Serina and Juvenescence on August 29, 2023 are not completed in a timely manner
or at all; risks associated with AgeX’s or Serina’s estimates regarding future revenue, expenses, capital requirements, and
need for additional financing following the merger; risks associated with the ability of AgeX and the combined company to remain listed
on the NYSE American; the risk that products may not be successfully commercialized or that the combined company might not otherwise
be able to generate sufficient revenues to operate at a profit; potential adverse changes to business or employee relationships, including
those resulting from the announcement or completion of the merger; the risk that changes in AgeX’s capital structure, management,
business, and governance following the merger could have adverse effects on the market value of its common stock; the ability of AgeX
and Serina to retain customers and retain and hire key personnel and maintain relationships with their suppliers and customers; risks
associated with Serina’s or the combined company’s ability to successfully collaborate with Serina’s existing collaborators
or enter into new collaborations, or to fulfill its obligations under any such collaboration agreements; risks associated with the combined
company’s commercialization, marketing and manufacturing capabilities and strategy; the risk that pursuing and completing the merger
and related transactions could distract AgeX and Serina management from their respective ongoing business operations or cause AgeX and
Serina to incur substantial costs; risks associated with competition and developments in the industry in which the combined company will
operate; the impact of world health events, including the COVID-19 pandemic and any related economic downturn; the risk of changes in
governmental regulations or enforcement practices; AgeX’s and Serina’s ability to meet guidance, market expectations, and
internal projections; the impact of AgeX stockholders having their percentage ownership interests in AgeX reduced by the issuance of
AgeX common stock to Serina stockholders in the Merger and by the issuance of shares of AgeX common stock upon the exercise of Post-Merger
Warrants by Juvenescence, and other important factors that could cause actual results to differ materially from those projected or expected
by AgeX management or stockholders. The effects of many of such factors are difficult to predict and may be beyond AgeX’s or Serina’s
control.
New
factors emerge from time to time, and it is not possible for us to predict all such factors, nor can we assess the impact of each such
factor on the business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from
those contained in any forward-looking statements. Additional factors that could cause actual results to differ materially from the results
anticipated in these forward-looking statements are contained in AgeX’s periodic reports filed with the SEC under the heading “Risk
Factors” and other filings that AgeX may make with the SEC. Forward-looking statements included in this communication are based
on information available to AgeX and Serina as of the date of this communication. Undue reliance should not be placed on these forward-looking
statements that speak only as of the date they are made, and except as required by law, AgeX and Serina each disclaims any intent or
obligation to update these forward-looking statements.
Additional
Information and Where to Find It
In
connection with the proposed business combination transaction between AgeX and Serina, AgeX intends to file relevant materials with the
SEC, including a registration statement on Form S-4. AGEX URGES INVESTORS AND STOCKHOLDERS TO READ THESE MATERIALS CAREFULLY AND IN THEIR
ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT AGEX, SERINA AND THE PROPOSED TRANSACTION AND
RELATED MATTERS. Investors and stockholders will be able to obtain free copies of the Form S-4 and other documents filed by AgeX with
the SEC (when they become available) through the website maintained by the SEC at www.sec.gov. In addition, investors and stockholders
will be able to obtain free copies of the Form S-4 and other documents filed by AgeX with the SEC by contacting Andrea Park by email
at apark@agexinc.com. Investors and stockholders are urged to read the Form S-4, including the proxy statement / prospectus contained
therein, and the other relevant materials when they become available before making any voting or investment decision with respect to
the proposed transaction.
Participants
in the Solicitation
AgeX
and Serina, and each of their respective directors and executive officers and certain of their other members of management and employees,
may be deemed to be participants in the solicitation of proxies in connection with the proposed transaction. Information about AgeX’s
directors and executive officers is included in AgeX’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with
the SEC on March 31, 2023, in the proxy statement for AgeX’s 2022 annual meeting of stockholders, filed with the SEC on November
2, 2022, and in AgeX’s Quarterly Report on Form 10-Q for the three and six months ended June 30, 2023, filed with the SEC on August
14, 2023. Additional information regarding these persons and their interests in the transaction will be included in the proxy statement
/ prospectus included in the Form S-4 relating to the transaction when it is filed with the SEC. These documents can be obtained free
of charge from the sources indicated above.
No
Offer or Solicitation
This
communication relates to a proposed business combination transaction between AgeX and Serina. This communication is for informational
purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any
vote or approval, in any jurisdiction, pursuant to the proposed business combination transaction or otherwise, nor shall there be any
sale, issuance, exchange or transfer of the securities referred to in this communication in any jurisdiction in contravention of applicable
law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Investor
Contact
Andrea
E. Park
apark@agexinc.com
(510)
671-8620
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