UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM
8-K
CURRENT REPORT
Pursuant to Section
13 or 15(d)
of the Securities
Exchange Act of 1934
Date of Report (Date
of earliest event reported): July 19, 2024
Augmedix, Inc.
(Exact name of registrant
as specified in its charter)
Delaware |
|
001-40890 |
|
83-3299164 |
(State or other jurisdiction |
|
(Commission File Number) |
|
(IRS Employer |
of incorporation) |
|
|
|
Identification No.) |
111 Sutter Street,
Suite 1300
San Francisco,
California 94104
(Address of principal
executive offices, including zip code)
(888) 669-4885
(Registrant’s
telephone number, including area code)
Not Applicable
(Former name or
former address, if changed since last report.)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425) |
☒ | Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section
12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange
on which registered |
Common Stock, $0.0001 par value per share |
|
AUGX |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive
Agreement.
Agreement and
Plan of Merger
On
July 19, 2024, Augmedix, Inc. (“Company”) entered into an Agreement and Plan of Merger (the “Merger
Agreement”) with Commure, Inc., a Delaware corporation (“Parent”), and Anderson Merger Sub, Inc., a Delaware
corporation and direct wholly-owned subsidiary of Parent (“Merger Sub”). The Merger Agreement provides that, subject to
the terms and conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the
“Merger”), with the Company continuing as a wholly-owned subsidiary of Parent.
The
Company’s board of directors (the “Board”), by unanimous vote, determined that it is in the best interests of the Company
and its stockholders, and advisable, for the Company to enter into the Merger Agreement and recommended that the Company’s stockholders
adopt the Merger Agreement and approve the Merger.
Pursuant
to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each issued and outstanding share of
the Company’s common stock, par value $0.0001 per share (“Company Common Stock”) (other than shares owned by the Company,
Parent or Merger Sub or any direct or indirect wholly owned subsidiary of Parent or Merger Sub or by stockholders of the Company who
have neither voted in favor of the Merger nor consented to the Merger in writing and who have properly and validly exercised their statutory
rights of appraisal in respect of such shares of Company Common Stock in accordance with Section 262 of the General Corporation Law of
the State of Delaware) will be cancelled and extinguished and automatically converted into the right to receive cash in an amount equal
to $2.35, without interest (the “Per Share Price”), and subject to applicable tax withholdings.
At
the Effective Time, restricted stock units granted under any of the Company Equity Plans (as defined in the Merger Agreement) (“Company
RSUs”) will be treated in the following manner: (i) each outstanding Company RSU that is vested or vests at the Effective
Time will be cancelled and converted into the right to receive an amount in cash equal to the product of (A) the aggregate number
of shares of Company Common Stock subject to such vested Company RSU, multiplied by (B) the Per Share Price, subject to applicable
tax withholdings; and (ii) each outstanding Company RSU that is unvested as of the Effective Time will be cancelled and replaced
with a right to receive an amount in cash, without interest, equal to the product of (A) the amount of the Per Share Price, multiplied
by (B) the total number of shares of Company Common Stock subject to such unvested Company RSU, subject to applicable tax withholdings.
Such cash amount will generally be subject to the same terms and conditions as applied to such unvested Company RSU immediately prior
to the Effective Time, including the vesting schedule and applicable continued service conditions.
At
the Effective Time, stock options (“Company Options”) or stock appreciation rights (“Company SARs”) granted under
any of the Company Equity Plans will be treated in the following manner: (i) each Company Option and Company SAR that is vested
or vests at the Effective Time will be cancelled and converted into the right to receive an amount in cash equal to the product
of (A) the aggregate number of shares of Company Common Stock subject to such vested Company Option or Company SAR, multiplied by
(B) the excess, if any, of the Per Share Price over the applicable per share exercise price attributable to such Company Option
or Company SAR, subject to applicable tax withholdings; (ii) each Company Option and Company SAR that is unvested as of the Effective
Time will be cancelled and replaced with a right to receive an amount in cash, without interest, equal to the product of (A) the aggregate
number of shares of Company Common Stock subject to such unvested Company Option or Company SAR, multiplied by (B) the excess, if any,
of the Per Share Price over the applicable per share exercise price attributable to such Company Option or Company SAR, which cash amount
will generally be subject to the same terms and conditions as applied to such unvested Company Option or Company SAR immediately prior
to the Effective Time, including the vesting schedule and applicable continued service conditions; and (iii) any Company Option
or Company SAR with an exercise price that is equal to or greater than the Per Share Price will be cancelled without any cash payment
or other consideration being made in respect of such Company Option or Company SAR.
At
the Effective Time, outstanding and unexercised warrants to purchase shares of Company Common Stock (“Company Warrants”)
will be treated in accordance with the terms of the applicable Company Warrant, as follows: (i) each Company Warrant that, pursuant to
the terms of such Company Warrant, shall expire or terminate as a result of the Merger (each, a “Terminated Warrant”) without
consideration shall expire or terminate immediately prior to the Effective Time without any consideration payable therefor; (ii) each
Company Warrant that, pursuant to the terms of such Company Warrant, requires a payment to the holder thereof and provides for deemed
exercise as a result of the Merger (each, an “In-the-Money Warrant”) shall be cancelled and automatically converted into
the right to receive an amount in cash calculated pursuant to the terms of such In-the-Money Warrant; and (iii) unless otherwise agreed
with the holders thereof prior to the Effective Time, each Company Warrant that, pursuant to the terms of such Company Warrant, does
not provide for expiration, termination or deemed exercise as a result of the Merger (each, an “Unexercised Warrant”) shall
be converted into and thereafter evidence a warrant entitling the holder thereof to receive upon exercise an amount in cash calculated
pursuant to the terms of such Unexercised Warrant.
The
Merger Agreement contains customary covenants made by each of the Company, Parent and Merger Sub, including, among others, covenants
by the Company regarding the conduct of its business prior to the closing of the Merger.
Consummation
of the Merger is subject to the satisfaction or waiver of customary closing conditions, including adoption of the Merger Agreement by
the Company’s stockholders and the absence of any statute, rule, regulation, order, or other legal or regulatory restraint preventing,
prohibiting or enjoining the consummation of the Merger. The Merger Agreement does not contain any financing condition.
Subject
to the terms of the Merger Agreement, either the Company or Parent may terminate the Merger Agreement if: (A) any final order or law
prohibiting the consummation of the Merger comes into effect; (B) the Effective Time has not occurred by 11:59 p.m. Eastern Time on January
21, 2025 (the “Termination Date”); or (C) the Company’s stockholders fail to adopt the Merger Agreement. Parent may
terminate the Merger Agreement in certain additional limited circumstances, including where (i) the Board changes its recommendation
that the Company’s stockholders vote to adopt the Merger Agreement, (ii) the Company materially breaches its representations, warranties
or covenants under the Merger Agreement, or (iii) the Company and its subsidiaries or any of its directors or officers or any of its
financial advisors or attorneys engaged by the Company and its subsidiaries in connection with the Merger (or any person acting at the
Company’s or any of its subsidiaries’ instruction) materially breach Section 5.3 (No Solicitation) of the Merger Agreement
(in each case subject to additional terms in the Merger Agreement). The Company may terminate the Merger Agreement in certain additional
limited circumstances, including to allow the Company to enter into an agreement providing for an alternative acquisition transaction
that constitutes a Superior Proposal (as defined in the Merger Agreement) or Parent or Merger Sub’s material breach of their representations,
warranties or covenants under the Merger Agreement (in each case subject to additional terms in the Merger Agreement).
Upon
termination of the Merger Agreement, under specified circumstances, including, among others, termination by the Company in order to enter
into an agreement providing for a Superior Proposal (as defined in the Merger Agreement), the Company will be required to pay Parent
a termination fee of $5,240,000. The Merger Agreement also provides that the Company, on the one hand, or Parent and Merger Sub, on the
other hand, may specifically enforce the obligations of the other party under the Merger Agreement. The aggregate liability of Parent
and Merger Sub for monetary damages for breaches of the Merger Agreement is capped at $10,480,000 plus certain reimbursement and indemnification
obligations in connection with Parent’s debt financing (if any), and the Company’s liability for monetary damages for breaches
of the Merger Agreement is capped at $5,240,000 plus certain expenses if Parent is required to enforce its rights to the termination
fee.
The
Merger Agreement contains customary representations and warranties by each of the Company, Parent and Merger Sub. These representations
and warranties were made solely for the benefit of the parties to the Merger Agreement and:
| ● | should not be treated as categorical
statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; |
| ● | may have been qualified in the
Merger Agreement by confidential disclosures that were made to the other party in connection with the negotiation of the Merger Agreement; |
| ● | may apply contractual standards
of “materiality” that are different from “materiality” under applicable securities laws; and |
| ● | were made only as of the date
of the Merger Agreement or such other date or dates as may be specified in the Merger Agreement. |
The
foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is qualified
in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and is incorporated
herein by reference.
Voting Agreements
In
connection with the Merger Agreement, on July 19, 2024, certain entities affiliated with Redmile Group, LLC, HINSIGHT-AUGX HOLDINGS,
LLC and the Company’s chief executive officer, in each case in their capacity as stockholders of the Company, each entered into
a voting and support agreement (collectively the “Voting Agreements”) with Parent and Merger Sub. Under the Voting Agreements,
the applicable stockholders commit to, among other things, vote their respective shares of Company Common Stock in favor of the adoption
of the Merger Agreement and against any competing transaction, subject to certain exceptions. The Voting Agreements terminate in certain
circumstances, including in connection with the Company’s termination of the Merger Agreement in order to accept a Superior Proposal
(as defined in the Merger Agreement). In total, the stockholders that signed the Voting Agreements hold outstanding shares of Company
Common Stock representing approximately 38% of the Company’s voting power as of July 19, 2024.
The
foregoing description of the Voting Agreements does not purport to be complete and is qualified in its entirety by reference to the full
text of the Voting Agreement, a form of which is filed as Exhibit 10.1 hereto and is incorporated herein by reference.
Item 8.01 Other Events.
On
July 19, 2024, Parent and the Company issued a joint press release announcing the Merger. A copy of the press release is attached as
Exhibit 99.1 hereto and is incorporated herein by reference.
Cautionary Statement
Regarding Forward-Looking Statements
This communication
may contain forward-looking statements, which include all statements that do not relate solely to historical or current facts, such as
statements regarding the pending acquisition of the Company by Parent (the “Merger”) and the expected timing of the closing
of the Merger and other statements that concern the Company’s expectations, intentions or strategies regarding the future. In some
cases, you can identify forward-looking statements by the following words: “may,” “will,” “could,”
“would,” “should,” “expect,” “intend,” “plan,” “anticipate,”
“believe,” “estimate,” “predict,” “project,” “aim,” “potential,”
“continue,” “ongoing,” “goal,” “can,” “seek,” “target” or the
negative of these terms or other similar expressions, although not all forward-looking statements contain these words. These forward-looking
statements are based on the Company’s beliefs, as well as assumptions made by, and information currently available to, the Company.
Because such statements are based on expectations as to future financial and operating results and are not statements of fact, actual
results may differ materially from those projected and are subject to a number of known and unknown risks and uncertainties, including,
but not limited to: (i) the risk that the Merger may not be completed on the anticipated timeline or at all; (ii) the failure to satisfy
any of the conditions to the consummation of the Merger, including the receipt of required approval from the Company’s stockholders;
(iii) the occurrence of any event, change or other circumstance or condition that could give rise to the termination of the Merger Agreement,
including in circumstances requiring the Company to pay a termination fee; (iv) the effect of the announcement or pendency of the Merger
on the Company’s business relationships, operating results and business generally; (v) risks that the Merger disrupts the Company’s
current plans and operations; (vi) the Company’s ability to retain and hire key personnel and maintain relationships with key business
partners and customers, and others with whom it does business; (vii) risks related to diverting management’s or employees’
attention during the pendency of the Merger from the Company’s ongoing business operations; (viii) the amount of costs, fees, charges
or expenses resulting from the Merger; (ix) potential litigation relating to the Merger; (x) uncertainty as to timing of completion of
the Merger and the ability of each party to consummate the Merger; (xi) risks that the benefits of the Merger are not realized when or
as expected; (xii) the risk that the price of the Company’s common stock may fluctuate during the pendency of the Merger and may
decline significantly if the Merger is not completed; and (xiii) other risks described in the Company’s filings with the U.S. Securities
and Exchange Commission (the “SEC”), such as the risks and uncertainties described under the headings “Cautionary Note
Regarding Forward-Looking Statements,” “Risk Factors,” “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and other sections of the Company’s Annual Report on Form 10-K, the Company’s
Quarterly Reports on Form 10-Q, and in the Company’s other filings with the SEC. While the list of risks and uncertainties presented
here is, and the discussion of risks and uncertainties to be presented in the proxy statement on Schedule 14A that the Company will file
with the SEC relating to its special meeting of stockholders will be, considered representative, no such list or discussion should be
considered a complete statement of all potential risks and uncertainties. Unlisted factors may present significant additional obstacles
to the realization of forward-looking statements. Consequences of material differences in results as compared with those anticipated
in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal
liability to third parties and/or similar risks, any of which could have a material adverse effect on the completion of the Merger and/or
the Company’s consolidated financial condition. The forward-looking statements speak only as of the date they are made. Except
as required by applicable law or regulation, the Company undertakes no obligation to update any forward-looking statements, whether as
a result of new information, future events or otherwise.
The information
that can be accessed through hyperlinks or website addresses included in this communication is deemed not to be incorporated in or part
of this communication.
Additional Information
and Where to Find It
This communication
is being made in respect of the Merger. In connection with the proposed Merger, the Company will file with the SEC a proxy statement
on Schedule 14A relating to its special meeting of stockholders and may file or furnish other documents with the SEC regarding the Merger.
When completed, a definitive proxy statement will be mailed to the Company’s stockholders. STOCKHOLDERS ARE URGED TO CAREFULLY
READ THE PROXY STATEMENT REGARDING THE MERGER (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO AND ANY DOCUMENTS INCORPORATED BY REFERENCE
THEREIN) AND ANY OTHER RELEVANT DOCUMENTS FILED OR FURNISHED WITH THE SEC IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE MERGER. The Company’s stockholders may obtain free copies of the documents the Company
files with the SEC from the SEC’s website at www.sec.gov or through the Company’s website at ir.augmedix.com under the link
“SEC Filings” or by contacting the Company’s Investor Relations department via e-mail at investors@augmedix.com.
Participants
in the Solicitation
The Company and
its directors and executive officers may be deemed to be participants in the solicitation of proxies from the Company’s stockholders
with respect to the Merger. Information about the Company’s directors and executive officers and their ownership of the Company’s
common stock is set forth in the Company’s Amended Annual Report on Form 10-K/A for the fiscal year ended December 31, 2023 filed
with the SEC on April 29, 2024. To the extent that such individual’s holdings of the Company’s common stock have changed
since the amounts printed in the Company’s Amended Annual Report on Form 10-K/A for the fiscal year ended December 31, 2023 filed
with the SEC on April 29, 2024, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with
the SEC. Additional information regarding the identity of such participants, and their direct or indirect interests in the Merger, by
security holdings or otherwise, will be set forth in the proxy statement and other materials to be filed with SEC in connection with
the Merger.
Item 9.01 Financial Statements
and Exhibits.
(d) Exhibits.
* | All schedules to the Merger Agreement have been omitted
pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby agrees to furnish supplementally a copy of any omitted schedule to
the Securities and Exchange Commission 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.
|
AUGMEDIX, INC. |
|
|
|
Date: July 19, 2024 |
By: |
/s/ Paul Ginocchio |
|
|
Paul Ginocchio |
|
|
Chief Financial Officer |
Exhibit 2.1
Execution Version
AGREEMENT AND PLAN OF MERGER
by and among
COMMURE, INC.
ANDERSON MERGER SUB, INC.
and
AUGMEDIX, INC.
Dated as of July 19, 2024
TABLE OF CONTENTS
|
Page |
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Article I DEFINITIONS & INTERPRETATIONS |
2 |
|
|
1.1 |
Certain Definitions |
2 |
1.2 |
Additional Definitions |
14 |
1.3 |
Certain Interpretations |
17 |
|
|
|
Article II THE MERGER |
19 |
|
|
2.1 |
The Merger |
19 |
2.2 |
The Effective Time |
19 |
2.3 |
The Closing |
19 |
2.4 |
Effect of the Merger |
19 |
2.5 |
Certificate of Incorporation and Bylaws |
19 |
2.6 |
Directors and Officers |
20 |
2.7 |
Effect on Capital Stock |
20 |
2.8 |
Equity Awards and Company Warrants |
22 |
2.9 |
Exchange of Certificates |
26 |
2.10 |
No Further Ownership Rights in Company Common Stock |
28 |
2.11 |
Lost, Stolen or Destroyed Certificates |
29 |
2.12 |
Required Withholding |
29 |
2.13 |
No Dividends or Distributions |
29 |
2.14 |
Necessary Further Actions |
29 |
|
|
|
Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
29 |
|
|
3.1 |
Organization; Good Standing |
30 |
3.2 |
Subsidiaries |
30 |
3.3 |
Corporate Power; Enforceability |
30 |
3.4 |
Company Board Approval; Fairness Opinion; Anti-Takeover Laws |
31 |
3.5 |
Requisite Stockholder Approval |
31 |
3.6 |
Non-Contravention |
32 |
3.7 |
Requisite Governmental Approvals |
32 |
3.8 |
Company Capitalization |
32 |
3.9 |
Capitalization of Subsidiaries |
35 |
3.10 |
Company SEC Reports |
35 |
3.11 |
Company Financial Statements; Internal Controls; Indebtedness |
36 |
3.12 |
No Undisclosed Liabilities |
37 |
3.13 |
Litigation and Proceedings |
37 |
3.14 |
Legal Compliance |
38 |
3.15 |
Material Contracts |
39 |
3.16 |
Employee Plans |
41 |
3.17 |
Labor Relations; Employees |
43 |
3.18 |
Tax Matters |
44 |
3.19 |
Brokers |
46 |
3.20 |
Insurance |
46 |
3.21 |
Permits |
46 |
TABLE OF CONTENTS
3.22 |
Real Property |
47 |
3.23 |
Intellectual Property |
47 |
3.24 |
Privacy and Cybersecurity |
49 |
3.25 |
Environmental Matters |
50 |
3.26 |
Absence of Certain Changes |
51 |
3.27 |
Government Contracts |
50 |
3.28 |
Top Vendors |
51 |
3.29 |
Related Person Transactions |
51 |
3.30 |
No Additional Representations or Warranties |
51 |
|
|
|
Article IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
51 |
|
|
4.1 |
Organization; Good Standing |
51 |
4.2 |
Power; Enforceability |
52 |
4.3 |
Non-Contravention |
52 |
4.4 |
Requisite Governmental Approvals |
53 |
4.5 |
Legal Proceedings; Orders |
53 |
4.6 |
Ownership of Company Capital Stock |
53 |
4.7 |
Brokers |
53 |
4.8 |
Operations and Ownership of Merger Sub |
54 |
4.9 |
No Parent Vote or Approval Required |
54 |
4.10 |
Sufficient Funds |
54 |
4.11 |
Stockholder and Management Arrangements |
54 |
4.12 |
Other Interests |
54 |
4.13 |
Solvency |
55 |
4.14 |
No Foreign Ownership, Control or Influence |
55 |
4.15 |
Exclusivity of Representations and Warranties |
55 |
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|
|
Article V INTERIM OPERATIONS OF THE COMPANY |
56 |
|
|
5.1 |
Affirmative Obligations |
56 |
5.2 |
Forbearance Covenants |
57 |
5.3 |
No Solicitation |
61 |
|
|
|
Article VI ADDITIONAL COVENANTS |
66 |
|
|
6.1 |
Required Action and Forbearance; Efforts |
66 |
6.2 |
Antitrust Filings |
67 |
6.3 |
Proxy Statement and Other Required SEC Filings |
69 |
6.4 |
Company Stockholder Meeting |
71 |
6.5 |
Cooperation With Debt Financing |
72 |
6.6 |
Anti-Takeover Laws |
77 |
6.7 |
Access |
77 |
6.8 |
Section 16(b) Exemption |
77 |
6.9 |
Directors’ and Officers’ Exculpation, Indemnification and Insurance |
78 |
6.10 |
Employee Matters |
81 |
6.11 |
Obligations of Merger Sub |
82 |
TABLE OF CONTENTS
6.12 |
Notification of Certain Matters |
82 |
6.13 |
Public Statements and Disclosure |
83 |
6.14 |
Transaction Litigation |
83 |
6.15 |
Stock Exchange Delisting; Deregistration |
84 |
6.16 |
Additional Agreements |
84 |
6.17 |
Parent Vote |
84 |
6.18 |
No Control of the Other Party’s Business |
84 |
6.19 |
No Stockholder or Employment Discussions |
84 |
6.20 |
Payoff Letter |
85 |
|
|
|
Article VII CONDITIONS TO THE MERGER |
85 |
|
|
7.1 |
Conditions to Each Party’s Obligations to Effect the Merger |
85 |
7.2 |
Conditions to the Obligations of Parent and Merger Sub to Effect the Merger |
85 |
7.3 |
Conditions to the Company’s Obligations to Effect the Merger |
87 |
|
|
|
Article VIII TERMINATION, AMENDMENT AND WAIVER |
88 |
|
|
8.1 |
Termination |
88 |
8.2 |
Manner and Notice of Termination; Effect of Termination |
90 |
8.3 |
Fees and Expenses |
91 |
8.4 |
Amendment |
94 |
8.5 |
Extension; Waiver |
95 |
8.6 |
No Liability of Financing Sources |
95 |
|
|
|
Article IX GENERAL PROVISIONS |
95 |
|
|
9.1 |
Survival of Representations, Warranties and Covenants |
95 |
9.2 |
Notices |
96 |
9.3 |
Assignment |
97 |
9.4 |
Confidentiality |
97 |
9.5 |
Entire Agreement |
98 |
9.6 |
Third-Party Beneficiaries |
98 |
9.7 |
Severability |
98 |
9.8 |
Remedies |
99 |
9.9 |
Governing Law |
100 |
9.10 |
Consent to Jurisdiction |
100 |
9.11 |
WAIVER OF JURY TRIAL |
101 |
9.12 |
Company Disclosure Letter References |
101 |
9.13 |
Counterparts |
101 |
9.14 |
No Limitation |
101 |
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER (this “Agreement”) is made and entered into as of July 19, 2024, by and among Commure, Inc.,
a Delaware corporation (“Parent”), Anderson Merger Sub, Inc., a Delaware corporation and a direct wholly owned Subsidiary
of Parent (“Merger Sub”), and Augmedix, Inc., a Delaware corporation (the “Company”). Each
of Parent, Merger Sub and the Company are sometimes referred to as a “Party.” All capitalized terms that are used
in this Agreement have the respective meanings given to them in Article I.
RECITALS
A. The
board of directors of the Company (the “Company Board”) has (i) determined that this Agreement and the merger
of Merger Sub with and into the Company (the “Merger”), in accordance with the General Corporation Law of the
State of Delaware (the “DGCL”) and the other transactions contemplated hereby (collectively with the Merger, the “Merger
Transactions”) and upon the terms and subject to the conditions set forth herein, are advisable and in the best interests of
the Company and its stockholders; (ii) approved the execution and delivery of this Agreement by the Company, the performance by the
Company of its covenants and other obligations hereunder, and the consummation of the Merger upon the terms and subject to the conditions
set forth herein; and (iii) resolved, on the terms and subject to the conditions of this Agreement, to recommend that the stockholders
of the Company adopt this Agreement in accordance with the DGCL.
B. The
board of directors of Parent has (i) declared it advisable to enter into this Agreement; and (ii) approved and adopted the execution
and delivery of this Agreement, the performance of its covenants and other obligations hereunder, and the consummation of the Merger upon
the terms and subject to the conditions set forth herein.
C. The
board of directors of Merger Sub has (i) declared it advisable and in the best interests of Merger Sub and its sole stockholder,
Parent, to enter into this Agreement; (ii) approved and adopted the execution and delivery of this Agreement, the performance of
its covenants and other obligations hereunder, and the consummation of the Merger upon the terms and subject to the conditions set forth
herein; and (iii) resolved, on the terms and subject to the conditions of this Agreement, to recommend that Parent, as sole stockholder
of Merger Sub, adopt this Agreement in accordance with the DGCL.
D. Prior
to the execution and delivery of this Agreement, and as a condition to the willingness of Parent and Merger Sub to enter into this Agreement,
certain stockholders of the Company have entered into Voting Agreements set forth on Section A of the Company Disclosure Letter
(“Voting Agreements”) in connection with the Merger.
E. Parent,
Merger Sub and the Company desire to (i) make certain representations, warranties, covenants and agreements in connection with this
Agreement and the Merger Transactions; and (ii) prescribe certain conditions with respect to the consummation of the Merger Transactions.
AGREEMENT
NOW, THEREFORE, in consideration
of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Parent,
Merger Sub and the Company agree as follows:
Article I
DEFINITIONS & INTERPRETATIONS
1.1 Certain Definitions.
For all purposes of and pursuant to this Agreement, the following capitalized terms have the following respective meanings:
(a)
“Acceptable Confidentiality Agreement” means an agreement with the Company that is either (i) in effect
as of the execution and delivery of this Agreement; or (ii) executed, delivered and effective after the execution and delivery of
this Agreement, in either case containing customary provisions that require any counterparty thereto (and any of its Affiliates and representatives
named therein) that receive material non-public information of the Company to keep such information confidential, subject to customary
exceptions; provided, however, that, in the case of any such agreement executed after the date hereof, the provisions contained
therein, in the aggregate, are not materially less restrictive to such counterparty (and any of its Affiliates and representatives named
therein) than the terms of the Confidentiality Agreement (it being understood that such agreement need not contain any “standstill”
or similar provisions or otherwise prohibit the making of any Acquisition Proposal).
(b)
“Acquisition Proposal” means any offer or proposal (other than an offer or proposal by Parent or Merger Sub
or any of their Affiliates) to engage in an Acquisition Transaction.
(c)
“Acquisition Transaction” means any transaction or series of related transactions (other than the Merger) that,
if consummated, would result in:
(i) any direct or
indirect purchase or other acquisition by any Person or “group” (as defined pursuant to Section 13(d) of the Exchange
Act) of Persons, whether from the Company or any other Person(s), of securities representing more than 20% of the total outstanding voting
power of the Company after giving effect to the consummation of such purchase or other acquisition, including pursuant to a tender offer
or exchange offer by any Person or “group” of Persons that, if consummated in accordance with its terms, would result in
such Person or “group” of Persons acquiring beneficial ownership of more than 20% of the total outstanding voting power of
the Company after giving effect to the consummation of such tender or exchange offer;
(ii)
any direct or indirect purchase or other acquisition by any Person or “group” (as defined pursuant to Section 13(d)
of the Exchange Act) of Persons of assets constituting or accounting for more than 20% of the consolidated assets, revenue or net income
of the Company Group, taken as a whole (measured by the fair market value thereof as of the date of such purchase or acquisition); or
(iii)
any merger, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or other similar
transaction involving the Company pursuant to which any Person or “group” (as defined pursuant to Section 13(d) of the
Exchange Act) of Persons would acquire securities representing more than 20% of the total outstanding voting power of the Company outstanding
after giving effect to the consummation of such transaction.
(d)
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled
by or is under common control with such Person. For purposes of this definition, the term “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with
respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities, by contract or otherwise; provided, that, with
respect to Parent and Merger Sub, the term “Affiliate” shall not include any investment fund, investment vehicle or client
sponsored or advised by General Catalyst Group Management, LLC (“General Catalyst”) or any of its Affiliates or any
of the portfolio companies (as such term is commonly understood in the private equity industry) or other investments of any such investment
fund, investment vehicle or client (in each case, other than Parent and its Subsidiaries) (collectively, the “Excluded Affiliates”);
provided, further, that, with respect to Parent and Merger Sub, the Excluded Affiliates shall be deemed to be Affiliates
solely for purposes of the definition of “Non-Recourse Party”.
(e)
“AI Solutions” means artificial intelligence, machine learning and similar solutions, systems and technologies,
including proprietary algorithms, technologies, models (whether trained or untrained and including associated weights, parameters and
structure or architecture), software, or systems that make use of or employ neural networks, natural language processing, statistical
learning algorithms, or reinforcement learning.
(f) “AI Training Data”
means any training, validation, and test datasets, whether raw, preprocessed or enhanced, used to train, test or improve an AI Solution.
(g)
“Anti-Bribery Laws” means the U.S. Foreign Corrupt Practices Act of 1977, as amended, UK Bribery Act 2010, anti-bribery
legislation promulgated by the European Union and implemented by its member states, legislation adopted in furtherance of the OECD Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions. and similar anti-bribery Laws of the jurisdictions
in which the Company conducts business, in each case as applicable to the Company.
(h)
“Anti-Money Laundering Laws” means all applicable Laws, regulations, administrative orders, and decrees concerning
or relating to the prevention of money laundering or countering the financing of terrorism, including the Currency and Financial Transactions
Reporting Act of 1970, as amended by the USA PATRIOT Act, which legislative framework is commonly referred to as the “Bank Secrecy
Act,” and the rules and regulations thereunder.
(i)
“Antitrust Law” means the Sherman Antitrust Act, the Clayton Antitrust Act, the HSR Act, the Federal Trade Commission
Act and all other Laws, whether in any domestic or foreign jurisdiction, that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization or restraint
of trade or significant impediments or lessening of competition or the creation or strengthening of a dominant position through merger
or acquisition, in any case that are applicable to the Merger Transactions.
(j)
“Audited Company Balance Sheet” means the consolidated balance sheet (and the notes thereto) of the Company
Group as of December 31, 2023 set forth in the Company’s Annual Report on Form 10-K filed by the Company with the SEC
for the fiscal year ended December 31, 2023.
(k)
“Business Day” means each day that is not a Saturday, Sunday or other day on which the Company is closed for
business or banking institutions in New York, New York or San Francisco, California are permitted or required by law, executive order
or governmental decree to remain closed.
(l)
“Code” means the Internal Revenue Code of 1986, as amended.
(m)
“Company Capital Stock” means the Company Common Stock and the Company Preferred Stock.
(n)
“Company Common Stock” means the Common Stock, par value $0.0001 per share, of the Company.
(o)
“Company Equity Plans” means the equity plans set forth in Section 1.1(o) of the Company Disclosure
Letter that provide for the issuance of any Company Options, Company RSUs or Company SARs.
(p)
“Company Group” means the Company and its Subsidiaries.
(q)
“Company Intellectual Property” means any Intellectual Property that is owned by the Company Group.
(r)
“Company Loan and Security Agreement” means that certain Loan and Security Agreement, dated as of May 4,
2022 (as amended), by and between (i) Silicon Valley Bank, a division of First-Citizens Bank & Trust Company (successor by purchase
to the Federal Deposit Insurance Corporation as Receiver for Silicon Valley Bridge Bank, N.A. (as successor to Silicon Valley Bank)) (ii) the
Company and (iii) Augmedix Operating Corporation, a Delaware corporation.
(s) “Company
Material Adverse Effect” means any change, event, effect or circumstance (each, an “Effect”) that,
individually or taken together with all other Effects that have occurred prior to the date of determination of the occurrence of the
Company Material Adverse Effect, is or would reasonably be expected to (1) prevent, materially delay or materially impair the
ability of the Company Group to consummate the transactions contemplated hereby, including the Merger or (2) have a material
adverse effect on the business, financial condition or results of operations of the Company Group, taken as a whole; provided, however,
with respect to this clause (2), that none of the following (by itself or when aggregated) will be deemed to be or constitute a
Company Material Adverse Effect or will be taken into account when determining whether a Company Material Adverse Effect has
occurred or may, would or could occur (subject to the limitations set forth below):
(i)
changes in general economic conditions in the United States or any other country or region in the world, or changes in conditions
in the global economy generally, including changes in the rate of inflation, supply chain disruptions or trade policies;
(ii)
changes in conditions in the financial markets, credit markets or capital markets in the United States or any other country or
region in the world, including (1) changes in interest rates or credit ratings in the United States or any other country; (2) changes
in exchange rates for the currencies of any country; or (3) any suspension of trading in securities (whether equity, debt, derivative
or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country
or region in the world;
(iii) changes in
conditions in the industries in which the Company Group generally conducts business;
(iv) changes in regulatory,
legislative or political conditions in the United States or any other country or region in the world;
(v)
any political or geopolitical conditions, hostilities, armed conflicts, protests, social unrest, civil disobedience, acts of war
(whether or not declared), calamity or crises, sabotage, terrorism or military actions or other similar activities or events (including
any escalation or general worsening of any of the foregoing) in the United States or any other country or region in the world, including
the current conflict between (A) the Russian Federation and Ukraine and (B) Israel and the Islamic Resistance Movement (Hamas);
(vi) earthquakes,
hurricanes, tsunamis, tornadoes, floods, mudslides, wildfires or other natural disasters, weather conditions, pandemics or disease outbreaks
and other force majeure events (including any escalation or worsening of any of the foregoing) in the United States or any other country
or region in the world;
(vii) any Effect resulting
from the announcement of this Agreement or the pendency of the Merger Transactions, including the impact thereof on the relationships,
contractual or otherwise, of the Company Group with suppliers, customers, partners, vendors or any other third Person (other than for
purposes of determining whether a Company Material Adverse Effect has occurred in Section 3.6);
(viii)
any action taken or refrained from being taken, in each case to which Parent has expressly approved, consented to or requested
in writing following the date hereof;
(ix) changes or proposed
changes in GAAP or other accounting standards or in any applicable Laws or regulations (or the enforcement or interpretation of any of
the foregoing), in each case after the date hereof;
(x)
changes in the price or trading volume of the Company Common Stock, in and of itself (it being understood that any cause of such
change may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration when determining
whether a Company Material Adverse Effect has occurred); and
(xi) any failure,
in and of itself, by the Company Group to meet (A) any public estimates or expectations of the Company’s revenue, earnings
or other financial performance or results of operations for any period; or (B) any internal budgets, plans, projections or forecasts
of its revenues, earnings or other financial performance or results of operations (it being understood that any cause of any such failure
may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration when determining
whether a Company Material Adverse Effect has occurred);
except, with respect to clauses (i),
(ii), (iii), (iv), (v), and (vi) to the extent that such Effect has had a materially disproportionate
adverse effect on the Company relative to other similarly situated companies operating in the industries in which the Company Group conducts
business, in which case only the incremental disproportionate adverse impact may be taken into account in determining whether there has
occurred a Company Material Adverse Effect.
(t)
“Company Options” means any options to purchase shares of Company Common Stock granted under any of the Company
Equity Plans.
(u)
“Company Preferred Stock” means the Preferred Stock, par value $0.0001 per share, of the Company.
(v)
“Company Registered Intellectual Property” means all of the Registered Intellectual Property owned by, or filed
in the name of, the Company Group.
(w)
“Company Registration Rights Agreements” means that certain Registration Rights Agreement, dated as of April
19, 2023, and that certain Registration Rights Agreement, dated as of June 13, 2023, in each case, by and among the Company and
the Purchasers (as defined therein) party thereto.
(x)
“Company RSUs” means any restricted stock units granted under any of the Company Equity Plans.
(y)
“Company SARs” mean any stock appreciation rights granted under any of the Company Equity Plans.
(z)
“Company Stockholders” means the holders of shares of Company Capital Stock.
(aa) “Company
Systems” means all Software, computer hardware (whether general or special purpose), electronic data processing,
information, record keeping, communications, telecommunications, networks, interfaces, platforms, servers, peripherals, and computer systems, that are owned or used by or
for the Company or any of its Subsidiaries in the conduct of their respective businesses.
(bb)
“Company Warrants” means outstanding warrants to purchase shares of Company Common Stock.
(cc) “Continuing Employees”
means each individual who is an employee of the Company Group immediately prior to the Effective Time and continues to be an employee
of Parent or one of its Subsidiaries (including the Surviving Corporation) immediately following the Effective Time.
(dd) “Contract”
means any contract, subcontract, note, bond, mortgage, indenture, lease, sublease, easement, license, sublicense or other binding agreement
(in each case, whether written or oral).
(ee)
“DOJ” means the United States Department of Justice or any successor thereto.
(ff)
“Environmental Law” means any applicable Law or order relating to pollution, the protection of the environment
(including ambient air, surface water, groundwater or land) or exposure of any Person with respect to Hazardous Substances or otherwise
relating to the production, use, storage, treatment, transportation, recycling, disposal, discharge, release or other handling of any
Hazardous Substances, or the investigation, clean-up or remediation thereof.
(gg)
“ERISA” means the Employee Retirement Income Security Act of 1974.
(hh)
“ERISA Affiliate” means any Affiliate or business, whether or not incorporated, that together with the Company
or any of its Subsidiaries would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m)
or (o) of the Code.
(ii)
“Exchange Act” means the Securities Exchange Act of 1934.
(jj)
“Excluded Information” means any (i) financial statements of the Company Group other than the Required
Financial Statements; (ii) description of all or any component of the Debt Financing; (iii) pro forma financial statements or
adjustments or projections (including information regarding any post-Closing pro forma cost savings, synergies, capitalization, ownership
or other post-Closing pro forma adjustments), it being understood that Parent, and not the Company or its Subsidiaries or their respective
Representatives, will be responsible for the preparation of the pro forma financial statements and any other pro forma information, including
any pro forma adjustments, and (iv) other information that is not regularly maintained by the Company or the Company’s Subsidiaries
in the ordinary course of business.
(kk) “Financing Sources”
means the Persons, if any, that provide the Debt Financing in connection with the Merger and any joinder agreements or credit agreements
entered into pursuant thereto or relating thereto, together with their Affiliates and their and their Affiliates’ current, former
and future officers, directors, general or limited partners, shareholders, members, controlling persons, employees, agents and representatives
involved in the Debt Financing and the successors and assigns of each of the foregoing;
provided that none of Parent, Merger Sub or their respective Affiliates shall constitute Financing Sources.
(ll)
“FTC” means the United States Federal Trade Commission or any successor thereto.
(mm)
“GAAP” means generally accepted accounting principles, consistently applied, in the United States.
(nn) “Governmental
Authority” means any government, governmental or regulatory entity or body, department, commission, board, office, bureau,
agency or instrumentality, and any court, tribunal, arbitrator or arbitral body (public or private) or judicial body, in each case whether
federal, state, county or provincial, and whether local or foreign, or any accrediting body.
(oo) “Governmental
Order” means any order, judgment, injunction, decree, writ, stipulation, determination, assessment or award (including any
arbitration award), in each case, entered by or with any Governmental Authority.
(pp)
“Hazardous Substance” means any substance, material or waste that is characterized or regulated by a Governmental
Authority pursuant to any Environmental Law as “hazardous,” “pollutant,” “contaminant,” “toxic”
or “radioactive,” or for which liability or standard of conduct may be imposed under Environmental Law, including petroleum
and petroleum products, per- and polyfluoroalkyl substances, polychlorinated biphenyls and friable asbestos.
(qq) “Healthcare Law”
means any applicable Law relating to the provision, administration or reimbursement of healthcare items or services, as well as the privacy,
security, and interoperability of medical/health information, including: the Medicare statute (42 U.S.C. §§ 1395-1395lll);
the Medicaid statute (42 U.S.C. §§ 1396-1396w-5); the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a); the Anti-Kickback
Statute (42 U.S.C. § 1320a-7b); the False Claims Act (31 U.S.C. §§ 3729-3733); the Physician Self-Referral Law (42 U.S.C.
1395nn); the Exclusion Law (42 U.S.C. § 1320a-7); the Deficit Reduction Act of 2005 (Pub. L. 109–171); the Patient Protection
and Affordable Care Act of 2010 (Pub. L. 111 – 148); the 21st Century Cures Act (42 U.S.C. §§ 300jj-300jj-52); HIPAA
(as defined herein); 42 C.F.R. Part 2; the federal Food, Drug and Cosmetics Act (21 U.S.C. § 301 et seq.); Laws relating fee-splitting,
percentage-based billing arrangements, patient brokering, corporate practice of medicine and licensed professionals, billing, coding,
insurance coverage, kickbacks, claim processing, documentation and submission of claims, medical record documentation and access requirements,
governmental health programs and other payor requirements, risk adjustment, artificial intelligence, and any and all similar state or
local Laws; and any and all amendments or modifications made from time to time to the items referenced in this definition.
(rr)
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information
Technology for Economic and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009), and their implementing
regulations and applicable state Laws regulating the privacy and security of healthcare records.
(ss)
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
(tt)
“Indebtedness” means any of the following liabilities or obligations: (i) indebtedness for borrowed money
(including any principal, premium, accrued and unpaid interest, related expenses, prepayment penalties, commitment and other fees, sale
or liquidity participation amounts, reimbursements, indemnities and all other amounts payable in connection therewith); (ii) liabilities
evidenced by bonds, debentures, notes or other similar instruments or debt securities; (iii) liabilities pursuant to or in connection
with letters of credit or banker’s acceptances or similar items (in each case whether or not drawn, contingent or otherwise); (iv) liabilities
pursuant to capitalized leases; (v) liabilities arising out of interest rate and currency swap arrangements and any other Contract
designed to provide protection against fluctuations in interest or currency rates; (vi) deferred purchase price liabilities related
to past acquisitions of equity in, or material assets or material property of, any business or any corporation, partnership, association
or other business organization or division thereof; (vii) payment obligations arising in connection with earnouts or other contingent
payment obligations under Contracts providing for past acquisitions of equity in, or material assets or material property of, any business
or any corporation, partnership, association or other business organization or division thereof (other than contingent indemnification
obligations that have not matured and as to which no claims have been made, or to the Knowledge of the Company, threatened); (viii) all
liabilities under any unfunded or underfunded defined benefit pension, gratuity, seniority premium, termination indemnity, statutory severance
or similar plans or arrangements, and any employer contribution obligations to any defined contribution pension plan; (ix) liabilities
arising from any breach of any of the foregoing; and (x) indebtedness of others guaranteed by the Company Group or secured by any
Lien or security interest on the assets of the Company Group (other than, in any case, (x) accounts payable to trade creditors and
accrued expenses, and (y) liabilities or obligations solely between the Company and any wholly owned Subsidiary of the Company or
solely between wholly owned Subsidiaries of the Company).
(uu) “Intellectual
Property” means any and all worldwide rights in or to intellectual property, including intellectual property rights in all
of the following: (i) patents, patent applications, inventions, disclosures, and all continuations, continuations-in-part, divisionals,
reissues, re-examinations, substitutions, and extensions thereof (“Patents”); (ii) registered and unregistered
or common law trademarks, logos, service marks, corporate names, trade dress, and trade names, slogans and other source identifiers,
and all registrations, pending applications and renewals in connection therewith, together with the goodwill of the Company or any of
its Subsidiaries or their respective businesses symbolized by or associated with any of the foregoing (“Trademarks”);
(iii) registered and unregistered copyrights, and applications for registration and renewals thereof, and other works of authorship
(whether or not copyrightable) (“Copyrights”); (iv) rights of publicity, (v) social and mobile media accounts,
usernames and handles, (vi) internet domain names, (vii) rights in Software, (vii) trade secrets, know-how, methods, processes,
algorithms, techniques, technologies, data, databases, layouts, designs, specifications and confidential information.
(vv) “International
Trade Laws” means all applicable import and export Laws in countries in which the Company conducts business, including but
not limited to those under the authority of United States Departments of Commerce (Bureau of Industry and Security); Homeland Security (Customs and Border Protection);
State (Directorate of Defense Trade Controls); and Treasury (Office of Foreign Assets Control) and all comparable applicable export and
import Laws outside the United States for each country where the Company conducts business.
(ww)
“IRS” means the United States Internal Revenue Service or any successor thereto.
(xx)
“Knowledge” of the Company, with respect to any matter in question, means the actual knowledge of the Persons
set forth on Section 1.1(xx) of the Company Disclosure Letter, in each case after reasonable inquiry.
(yy)
“Law” means any federal, state, local, municipal, foreign or other law, statute, constitution, principle of
common law, resolution, ordinance, code, edict, directive, decree, rule, regulation, guidance, Governmental Order, award, ruling or requirement
issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
(zz) “Legal Proceeding”
means any claim, action, charge, complaint, lawsuit, litigation, audit, inquiry, investigation or other similarly formal legal proceeding
brought by or pending before any Governmental Authority, arbitrator, mediator or other tribunal.
(aaa)
“Lien” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest,
encumbrance or other similar claim of any kind in respect of such property or asset, other than a Permitted Lien.
(bbb)
“Nasdaq” means The Nasdaq Stock Market and any successor stock exchange.
(ccc)
“Parent 401(k) Plan” means a defined contribution plan that is sponsored by Parent or one of its Affiliates
that is qualified under Section 401(a) of the Code and that includes a qualified cash or deferred arrangement within the meaning
of Section 401(k) of the Code.
(ddd)
“Payoff Letter” means, with respect to any Indebtedness under the Company Loan and Security Agreement outstanding
as of immediately prior to Closing, customary payoff letters from the holder of such Indebtedness and setting forth the amount necessary
to repay the full amount thereof at Closing and to obtain the release of any Liens on the properties and assets of the Company securing
such Indebtedness, which payoff letters will, among other things, (i) indicate the total amount required to be paid to fully satisfy
all principal, interest, prepayment premiums, penalties and any other monetary obligations then due and payable under all loan agreements
(or similar documents) (the “Payoff Amount”), (ii) provide that upon receipt of all such amounts due under
each such payoff letter, such indebtedness and all related loan documents (or similar agreements) will be terminated, (iii) provide
that all Liens and guarantees (if any) in connection with such loan agreements (or similar agreements) relating to the Company securing
the obligations under such loan agreements (or similar agreements) will be released and terminated upon receipt of the Payoff Amount and
(iv) be accompanied by drafts of all required UCC-3 termination statements and other documents required to effect the release of
Liens.
(eee)
“Permitted Liens” means any of the following: (i) Liens for Taxes, assessments and governmental charges
or levies either not yet delinquent or that are being contested in good faith and by appropriate proceedings and for which appropriate
reserves have been established to the extent required by GAAP; (ii) mechanics, carriers’, workmen’s, warehouseman’s,
repairmen’s, materialmen’s or other Liens or security interests that are not yet due or that are being contested in good faith
and by appropriate proceedings and for which appropriate reserves have been established to the extent required by GAAP; (iii) Liens
imposed by applicable Law (other than Tax Law); (iv) pledges or deposits to secure obligations pursuant to workers’ compensation
laws or similar legislation or to secure public or statutory obligations; (v) pledges and deposits to secure the performance of bids,
trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary
course of business; (vi) defects, imperfections or irregularities in title, easements, covenants and rights of way (unrecorded and
of record) and other similar Liens (or other encumbrances of any type), and zoning, building and other similar codes or restrictions,
in each case that do not adversely affect in any material respect the current use or value of the applicable property owned, leased, used
or held for use by the Company Group; (vii) Liens the existence of which are disclosed in the notes to the consolidated financial
statements of the Company included in the Company SEC Reports filed as of the date hereof; (viii) non-exclusive licenses of Intellectual
Property; (ix) any other Liens that do not secure a liquidated amount, that have been incurred or suffered in the ordinary course
of business, and that would not, individually or in the aggregate, have a material effect on the Company Group, taken as a whole; (x) statutory,
common law or contractual Liens (or other encumbrances of any type) of landlords or Liens against the interests of the landlord or owner
of any Leased Real Property unless caused by the Company Group; or (xi) Liens (or other encumbrances of any type) that do not materially
and adversely affect the use or operation of the property subject thereto.
(fff)
“Person” means any individual, corporation (including any non-profit corporation), limited liability company,
joint stock company, general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, firm, Governmental
Authority or other enterprise, association, organization or entity.
(ggg)
“Personal Information” means information Processed by or for the Company or its Subsidiaries that is defined
as “personal data”, “personal information”, “non-public personal information”, “personally identifiable
information”, “protected health information” or any similar term under Laws governing privacy, data protection, or cybersecurity
applicable to the Company or its Subsidiaries.
(hhh)
“Registered Intellectual Property” means all United States, international and foreign (i) Patents and Patent
applications (including provisional applications); (ii) registered Trademarks and applications to register Trademarks (including
intent-to-use applications, or other registrations or applications related to Trademarks); (iii) registered Copyrights and applications
for Copyright registration; and (iv) all other Intellectual Property that is the subject of registration (or an application for registration),
including domain names.
(iii)
“Required Financial Statements” means (i) the Company Financial Statements filed with the SEC since January
1, 2022 through the date hereof and (ii) such other annual and quarterly financial statements that are required to be filed by the
Company Group with the SEC after the date hereof (which, for the
avoidance of doubt, shall not be Required Financial Statements for purposes of this Agreement until the last date by which such financial
statements are required to be filed with the SEC under the applicable regulations of the SEC).
(jjj)
“Sanctioned Country” means at any time, a country or territory which is itself the subject or target of any
country-wide or territory-wide Sanctions Laws (including, at the time of this Agreement, Cuba, Iran, North Korea, Syria, Venezuela and
the Donetsk People’s Republic, Luhansk People’s Republic, the non-government controlled areas of the Zaporizhzhia and Kherson
regions of Ukraine, and the Crimea region of Ukraine).
(kkk)
“Sanctioned Person” means any Person that is the target of any applicable Sanctions Laws, including (i) any
Person identified in any sanctions-related list of designated Persons, including those maintained by (A) the United States Department
of the Treasury’s Office of Foreign Assets Control, the United States Department of Commerce, Bureau of Industry and Security, or
the United States Department of State; (B) His Majesty’s Treasury of the United Kingdom; (C) any committee of the United
Nations Security Council; or (D) the European Union; (ii) any Person located, organized, or resident in, or a national of, or
a Governmental Authority or government instrumentality of, any Sanctioned Country; and (iii) any Person directly or indirectly owned
or controlled by, or acting for the benefit or on behalf of, a Person described in clause (i) or (ii), either individually or in
the aggregate.
(lll) “Sanctions Laws”
means any trade, economic or financial sanctions Laws, applicable to the Company, including those administered, enacted or enforced from
time to time by (i) the United States (including the Department of the Treasury’s Office of Foreign Assets Control or the United
States Department of State), (ii) the European Union and enforced by its member states, (iii) the United Nations, or (iv) His Majesty’s
Treasury of the United Kingdom.
(mmm)
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
(nnn)
“SEC” means the United States Securities and Exchange Commission or any successor thereto.
(ooo)
“Securities Act” means the Securities Act of 1933, as amended.
(ppp)
“Software” means all computer software (in object code or source code format), data and databases, and related
documentation and materials.
(qqq)
“Subsidiary” of any Person means (i) a corporation of which more than 50% of the combined voting power
of the outstanding voting equity securities of such corporation is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person; (ii) a partnership of which such
Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly,
is the general partner and has the power to direct the policies, management and affairs of such partnership; (iii) a limited liability
company of which such Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries of such
Person, directly or indirectly, is the manager or managing member and has the power to direct the policies, management and affairs of
such limited liability company; or (iv) any other Person (other than a corporation, partnership or limited liability company) in
which such Person or one or more other Subsidiaries
of such Person or such Person and one or more other Subsidiaries of such Person, directly or indirectly, has at least a majority ownership
and the power to direct the policies, management and affairs thereof. Notwithstanding anything to the contrary in this Agreement, for
purposes of this Agreement following the Closing, the Surviving Corporation and its Subsidiaries will be deemed to be a Subsidiary of
Parent.
(rrr)
“Superior Proposal” means any bona fide written Acquisition Proposal for an Acquisition Transaction on terms
that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside
legal counsel) is reasonably likely to be consummated in accordance with its terms, taking into account all legal, regulatory and financing
aspects of the proposal and the identity of the Person making the proposal and other aspects of the Acquisition Proposal that the Company
Board (or a committee thereof) deems relevant, and if consummated, would be more favorable, from a financial point of view, to the Company
Stockholders (in their capacity as such) than the Merger (taking into account any revisions to this Agreement made by Parent in a written
offer that is capable of being accepted prior to the time of such determination). For purposes of the reference to an “Acquisition
Proposal” in this definition, all references to “20%” in the definition of “Acquisition Transaction”
will be deemed to be references to “50%.”
(sss) “Tax Return”
means any return, declaration, report, statement, information statement or other document filed or required to be filed with any Governmental
Authority with respect to Taxes, including any claims for refunds of Taxes, any information returns and any schedules, attachments, amendments
or supplements of any of the foregoing.
(ttt)
“Taxes” means any and all federal, state, local, foreign or other taxes imposed by any Governmental Authority,
including all income, gross receipts, license, payroll, recapture, net worth, employment, escheat and unclaimed property obligations,
excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, ad valorem, value added,
alternative or add-on minimum, inventory, franchise, profits, withholding, social security (or similar), unemployment, disability, real
property, personal property, assessments, sales, use, transfer, registration, governmental charges, duties, levies and any other charge
of any kind in the nature of (or similar to) taxes, in each case including any interest, penalty, or addition thereto, whether disputed
or not.
(uuu)
“Transaction Litigation” means any Legal Proceeding commenced or threatened against a Party or any of its Subsidiaries
or Affiliates or otherwise relating to, involving or affecting such Party or any of its Subsidiaries or Affiliates, in each case in connection
with, arising from or otherwise relating to or regarding the Merger or any other transaction contemplated by this Agreement, including
any Legal Proceeding alleging or asserting any misrepresentation or omission in the Proxy Statement, any Other Required Company Filing
or any other communications to the Company Stockholders, other than any Legal Proceedings among the Parties or any of their Affiliates
or with the Financing Sources related to this Agreement.
(vvv)
“Vested Company Option” means a Company Option that is unexpired, unexercised, outstanding, and vested as of
immediately prior to the Effective Time or that vests solely as a result of the consummation of the transactions contemplated hereby (and
without any additional action by the Company, the Company Board or a committee thereof, including to the extent that any other conditions for vesting have
been satisfied on, prior to or in connection with the Effective Time).
(www)
“Vested Company RSU” means a Company RSU that is unexpired, outstanding, and vested as of immediately prior
to the Effective Time or that vests solely as a result of the consummation of the transactions contemplated hereby (and without any additional
action by the Company, the Company Board or a committee thereof, including to the extent that any other conditions for vesting have been
satisfied on, prior to or in connection with the Effective Time).
(xxx)
“Vested Company SAR” means a Company SAR that is unexpired, unexercised, outstanding, and vested as of immediately
prior to the Effective Time or that vests solely as a result of the consummation of the transactions contemplated hereby (and without
any additional action by the Company, the Company Board or a committee thereof, including to the extent that any other conditions for
vesting have been satisfied on, prior to or in connection with the Effective Time).
(yyy)
“WARN” means the United States Worker Adjustment and Retraining Notification Act of 1988, as amended, and any
similar foreign, state or local Law, regulation or ordinance.
1.2
Additional Definitions. The following capitalized terms have the respective meanings given to them in the respective
Sections of this Agreement set forth opposite each of the capitalized terms below:
Term |
|
Section
Reference |
Advisor |
|
3.4(b) |
Agreement |
|
Preamble |
Alternative Acquisition Agreement |
|
5.3(a)(ii)(E) |
Bylaws |
|
3.1(b) |
Capitalization Date |
|
3.8(a) |
Cash Replacement Company Option Amounts |
|
2.8(b)(ii) |
Cash Replacement Company RSU Amounts |
|
2.8(a)(ii) |
Cash Replacement Company SAR Amounts |
|
2.8(c)(ii) |
Certificate of Merger |
|
2.2 |
Certificates |
|
2.9(c)(i) |
Charter |
|
2.5(a) |
Chosen Courts |
|
9.10(a) |
Clean Team Agreement |
|
6.7 |
Closing |
|
2.3 |
Closing Date |
|
2.3 |
Collective Bargaining Agreement |
|
3.17(a) |
Company |
|
Preamble |
Company 401(k) Plan |
|
6.10(c) |
Company Board |
|
Recitals |
Company Board Recommendation |
|
3.4(a) |
Term |
|
Section
Reference |
Company Board Recommendation Change |
|
5.3(c)(i) |
Company Disclosure Letter |
|
Article III |
Company Financial Statements |
|
3.11(a) |
Company Liability Limitation |
|
8.3(e)(ii) |
Company Related Parties |
|
8.3(e)(ii) |
Company SEC Reports |
|
3.10 |
Company Stockholder Meeting |
|
6.4(a) |
Company Termination Fee |
|
8.3(b)(i) |
Confidentiality Agreement |
|
9.4 |
Continuation Period |
|
6.10(a) |
Copyrights |
|
1.1(uu) |
D&O Insurance |
|
6.9(c) |
Debt Financing |
|
6.5(a)(i) |
DGCL |
|
Recitals |
Dissenting Company Shares |
|
2.7(c)(i) |
DTC |
|
2.9(d) |
DTC Payment |
|
2.9(d) |
Effect |
|
1.1(s) |
Effective Time |
|
2.2 |
Electronic Delivery |
|
9.13 |
Employee Plan |
|
3.16(a) |
Enforceability Limitations |
|
3.3 |
Excluded Benefits |
|
6.10(a) |
Export Approvals |
|
3.14(c) |
General Catalyst |
|
1.1(d) |
Governmental Approval |
|
3.7 |
In-the-Money Warrant |
|
2.8(f)(ii) |
Indemnified Persons |
|
6.9(a) |
Intervening Event |
|
5.3(d)(i) |
Intervening Event Notice Period |
|
5.3(d)(i)(A) |
Latest Company Balance Sheet |
|
3.26 |
Lease |
|
3.22(b) |
Leased Real Property |
|
3.22(b) |
Material Contracts |
|
3.15(a) |
Maximum Annual Premium |
|
6.9(c) |
Merger |
|
Recitals |
Merger Sub |
|
Preamble |
Merger Transactions |
|
Recitals |
Multiemployer Plan |
|
3.16(c) |
New Plans |
|
6.10(b) |
Non-Recourse Party |
|
8.3(g) |
Old Plans |
|
6.10(b) |
Other Required Company Filing |
|
6.3(b) |
Term |
|
Section
Reference |
Other Required Parent Filing |
|
6.3(c) |
Owned Company Shares |
|
2.7(a)(iii) |
Parent |
|
Preamble |
Parent Liability Limitation |
|
8.3(e)(i) |
Parent Related Parties |
|
8.3(e)(i) |
Party |
|
Preamble |
Patents |
|
1.1(uu) |
Payment Agent |
|
2.9(a) |
Payment Fund |
|
2.9(b) |
Payoff Amount |
|
1.1(ddd) |
Per Share Price |
|
2.7(a)(ii) |
Permits |
|
3.21 |
Personal Information Laws and Policies |
|
3.24(a) |
Privacy Policies |
|
3.24(a) |
Processed |
|
3.24(a) |
Processing |
|
3.24(a) |
Proxy Statement |
|
6.3(a) |
Recent SEC Reports |
|
Article III |
Reimbursement Obligations |
|
6.5(f) |
Representatives |
|
5.3(a)(i) |
Requisite Stockholder Approval |
|
3.5 |
Securities |
|
3.8(d) |
Sublease |
|
3.22(c) |
Superior Proposal Notice Period |
|
5.3(d)(ii)(C) |
Surviving Corporation |
|
2.1 |
Termination Date |
|
8.1(c) |
Terminated Warrant |
|
2.8(f)(i) |
Title IV Plan |
|
3.16(c) |
Top Vendors |
|
3.28 |
Trademarks |
|
1.1(uu) |
Uncertificated Shares |
|
2.9(c)(i) |
Unexercised Warrant |
|
2.8(f)(iii) |
Unvested Company Options |
|
2.8(b)(ii) |
Unvested Company RSUs |
|
2.8(a)(ii) |
Unvested Company SARs |
|
2.8(c)(ii) |
Vested Option Consideration |
|
2.8(b)(i) |
Vested RSU Consideration |
|
2.8(a)(i) |
Vested SAR Consideration |
|
2.8(c)(i) |
Voting Agreements |
|
Recitals |
1.3
Certain Interpretations.
(a)
When a reference is made in this Agreement to an Article or a Section, such reference is to an Article or a Section of this Agreement
unless otherwise indicated. When a reference is made in this Agreement to a Schedule or Exhibit, such reference is to a Schedule or Exhibit
to this Agreement, as applicable, unless otherwise indicated.
(b)
When used herein, (i) the words “hereof,” “herein” and “herewith” and words of similar
import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement;
and (ii) the words “include,” “includes” and “including” will be deemed in each case to be followed
by the words “without limitation.”
(c)
Unless the context otherwise requires, “neither,” “nor,” “any,” “either” and “or”
are not exclusive.
(d)
The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends,
and does not simply mean “if.”
(e)
When used in this Agreement, references to “$” or “Dollars” are references to U.S. dollars.
(f)
The meaning assigned to each capitalized term defined and used in this Agreement is equally applicable to both the singular and
the plural forms of such term, and words denoting any gender include all genders. Where a word or phrase is defined in this Agreement,
each of its other grammatical forms has a corresponding meaning.
(g)
When reference is made to any party to this Agreement or any other agreement or document, such reference includes such Party’s
successors and permitted assigns. References to any Person include the successors and permitted assigns of that Person.
(h)
Unless the context otherwise requires, all references in this Agreement to the Subsidiaries of a Person will be deemed to include
all direct and indirect Subsidiaries of such entity.
(i)
When used herein, references to “ordinary course” or “ordinary course of business” will be construed to
mean “ordinary course of business, consistent with past practices.”
(j)
A reference to any specific legislation or to any provision of any legislation includes any amendment to, and any modification,
re-enactment or successor thereof, any legislative provision substituted therefor and all rules, regulations and statutory instruments
issued thereunder or pursuant thereto, except that, for purposes of any representations and warranties in that Agreement that are made
as a specific date, references to any specific legislation will be deemed to refer to such legislation or provision (and all rules, regulations
and statutory instruments issued thereunder or pursuant thereto) as of such date. References to any agreement or Contract are to that
agreement or Contract as amended, modified or supplemented from time to time.
(k)
All accounting terms used herein will be interpreted, and all accounting determinations hereunder will be made, in accordance
with GAAP.
(l)
The table of contents and headings set forth in this Agreement are for convenience of reference purposes only and will not affect
or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof.
(m)
The measure of a period of one month or year for purposes of this Agreement will be the date of the following month or year corresponding
to the starting date. If no corresponding date exists, then the end date of such period being measured will be the next actual date of
the following month or year (for example, one month following May 18 is June 18 and one month following May 31 is July 1).
(n)
The Parties agree that they have been represented by legal counsel during the negotiation and execution of this Agreement and therefore
waive the application of any Law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document
will be construed against the Party drafting such agreement or document.
(o)
No summary of this Agreement or any Exhibit or Schedule delivered herewith prepared by or on behalf of any Party will affect the
meaning or interpretation of this Agreement or such Exhibit or Schedule.
(p)
The information contained in this Agreement and in the Company Disclosure Letter is disclosed solely for purposes of this Agreement,
and no information contained herein or therein will be deemed to be an admission by any Party to any third Person of any matter whatsoever,
including (i) any violation of Law or breach of contract; or (ii) that such information is material or that such information
is required to be referred to or disclosed under this Agreement.
(q)
The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit
of the Parties. Any inaccuracies in such representations and warranties are subject to waiver by the Parties in accordance with Section 8.5
without notice or liability to any other Person. In some instances, the representations and warranties in this Agreement may represent
an allocation among the Parties of risks associated with particular matters regardless of the knowledge of any of the Parties. Consequently,
Persons other than the Parties may not rely on the representations and warranties in this Agreement as characterizations of actual facts
or circumstances as of the date hereof or as of any other date.
(r)
Documents or other information or materials will be deemed to have been “made available” by the Company if such documents,
information or materials have been posted to a virtual data room managed by the Company hosted by Intralinks, Inc. with the name “Project
Anderson” (prior to 6:01 p.m. Pacific Time on the day prior to the date hereof) or publicly filed with or furnished to the SEC and
available in its Electronic Data Gathering, Analysis and Retrieval (EDGAR) database (prior to the day prior to the date hereof).
Article II
THE MERGER
2.1
The Merger. Upon the terms and subject to the conditions set forth in this Agreement and the applicable provisions of
the DGCL, at the Effective Time, (a) Merger Sub will be merged with and into the Company; (b) the separate corporate existence
of Merger Sub will thereupon cease; and (c) the Company will continue as the surviving corporation of the Merger and a direct wholly
owned Subsidiary of Parent. The Company, as the surviving corporation of the Merger, is sometimes referred to herein as the “Surviving
Corporation.”
2.2
The Effective Time. Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date, Parent,
Merger Sub and the Company will cause the Merger to be consummated pursuant to the DGCL by filing a certificate of merger in customary
form and substance (the “Certificate of Merger”) with the Secretary of State of the State of Delaware in accordance
with the applicable provisions of the DGCL. The Merger will become effective at the time of such filing and acceptance for record by the
Secretary of State of the State of Delaware, or such later time as may be agreed in writing by Parent, Merger Sub and the Company and
specified in the Certificate of Merger, being referred to herein as the “Effective Time”.
2.3
The Closing. The consummation of the Merger will take place at a closing (the “Closing”) to
occur (a) electronically through the exchange of documents via email at 9:00 a.m., Eastern time, on the fifth Business Day after
the satisfaction or waiver (to the extent permitted hereunder) of the last to be satisfied or waived of the conditions set forth in Article VII
(other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the
extent permitted hereunder) of such conditions); or (b) at such other time, location and date as Parent, Merger Sub and the Company
mutually agree in writing. The date on which the Closing actually occurs is referred to as the “Closing Date.”
2.4
Effect of the Merger. At the Effective Time, the effect of the Merger will be as provided in this Agreement and the
applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all (a) of
the property, rights, privileges, powers and franchises of the Company and Merger Sub will vest in the Surviving Corporation; and (b) debts,
liabilities and duties of the Company and Merger Sub will become the debts, liabilities and duties of the Surviving Corporation.
2.5
Certificate of Incorporation and Bylaws.
(a)
Certificate of Incorporation. At the Effective Time, subject to the provisions of Section 6.9(a), the Amended
and Restated Certificate of Incorporation of the Company, as amended (the “Charter”), will be amended and restated
in its entirety to read substantially identically to the certificate of incorporation of Merger Sub as in effect immediately prior to
the Effective Time, and such amended and restated certificate of incorporation will become the certificate of incorporation of the Surviving
Corporation until thereafter amended in accordance with the applicable provisions of the DGCL and such certificate of incorporation; provided,
however, that at the Effective Time the certificate of incorporation of the Surviving Corporation will be amended so that the name
of the Surviving Corporation will be “Augmedix, Inc.”.
(b)
Bylaws. At the Effective Time, subject to the provisions of Section 6.9(a), the bylaws of Merger Sub, as in
effect immediately prior to the Effective Time, will become the bylaws of the Surviving Corporation until thereafter amended in accordance
with the applicable provisions of the DGCL, the certificate of incorporation of the Surviving Corporation and such bylaws, except
that references to the name of Merger Sub will be replaced by references to the name of the Surviving Corporation.
2.6
Directors and Officers.
(a)
Directors. Except as otherwise determined by Parent and notified in writing to the Company at least five (5) Business
Days prior to the Effective Time, at the Effective Time, the initial directors of the Surviving Corporation will be the directors of Merger
Sub as of immediately prior to the Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws
of the Surviving Corporation until their respective successors are duly elected or appointed and qualified.
(b)
Officers. Except as otherwise determined by Parent and notified in writing to the Company at least five (5) Business Days
prior to the Effective Time, at the Effective Time, the initial officers of the Surviving Corporation will be the officers of Merger Sub
as of immediately prior to the Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws of the
Surviving Corporation until their respective successors are duly appointed.
2.7
Effect on Capital Stock.
(a)
Capital Stock. Unless otherwise agreed to by the Parties, upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the
holders of any of the following securities, the following will occur:
(i)
each share of common stock, par value $0.0001 per share, of Merger Sub that is outstanding as of immediately prior to the Effective
Time will be converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation, and thereupon
each certificate representing ownership of such shares of common stock of Merger Sub will thereafter represent ownership of shares of
common stock of the Surviving Corporation;
(ii)
each share of Company Common Stock that is outstanding as of immediately prior to the Effective Time (other than Owned Company
Shares and Dissenting Company Shares) will be cancelled and extinguished and automatically converted into the right to receive cash in
an amount equal to $2.35, without interest thereon (the “Per Share Price”); and
(iii)
each share of Company Common Stock that is (A) held by the Company as treasury stock; (B) owned by Parent or Merger Sub;
or (C) owned by any direct or indirect wholly owned Subsidiary of Parent or Merger Sub as of immediately prior to the Effective Time
(collectively, the “Owned Company Shares”) will be cancelled and extinguished without any conversion thereof or
consideration paid therefor.
(b)
Adjustment to the Per Share Price. The Per Share Price will be adjusted correspondingly and equitably to reflect the effect
of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into,
or exercisable for, Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other
similar change with respect to the Company Common Stock or securities convertible or exchangeable into or exercisable for Company Common
Stock occurring on or after the date hereof and prior to the Effective Time.
(c)
Statutory Rights of Appraisal.
(i)
Notwithstanding anything to the contrary set forth in this Agreement, all shares of Company Common Stock that are issued and outstanding
as of immediately prior to the Effective Time and held by Company Stockholders who shall have neither voted in favor of the Merger nor
consented thereto in writing and who shall have properly and validly exercised their statutory rights of appraisal in respect of such
shares of Company Common Stock in accordance with Section 262 of the DGCL (the “Dissenting Company Shares”)
will not be converted into, or represent the right to receive, the Per Share Price pursuant to this Section 2.7. Such Company
Stockholders will be entitled to receive payment of the appraised value of such Dissenting Company Shares in accordance with the provisions
of Section 262 of the DGCL, except that all Dissenting Company Shares held by Company Stockholders who shall have failed to perfect
or who shall have effectively withdrawn or lost their rights to appraisal of such Dissenting Company Shares pursuant to Section 262
of the DGCL will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right
to receive the Per Share Price, without interest thereon, upon surrender of the Certificates or Uncertificated Shares that formerly evidenced
such shares of Company Common Stock in the manner provided in Section 2.9.
(ii)
The Company will give Parent (A) prompt notice of any demands for appraisal received by the Company, withdrawals of such demands
and any other instruments served pursuant to the DGCL and received by the Company in respect of Dissenting Company Shares; and (B) the
opportunity to participate in all negotiations and Legal Proceedings with respect to demands for appraisal pursuant to the DGCL in respect
of Dissenting Company Shares. The Company may not, except with the prior written consent of Parent (which consent will not be unreasonably
withheld, conditioned or delayed), voluntarily make any payment with respect to any demands for appraisal or settle or offer to settle
any such demands for payment in respect of Dissenting Company Shares. For purposes of this Section 2.7(c)(ii), “participate”
means that Parent will be kept apprised of proposed strategy and other significant decisions with respect to demands for appraisal pursuant
to the DGCL in respect of Dissenting Company Shares (to the extent that the attorney-client privilege between the Company and its counsel
is not undermined or otherwise affected), and Parent may offer comments or suggestions with respect to such demands but will not be afforded
any decision-making power or other authority over such demands except for the payment, settlement or compromise consent set forth above.
2.8
Equity Awards and Company Warrants.
(a)
Company RSUs. Unless otherwise agreed to by the Parties, at the Effective Time, by virtue of the Merger, the Company RSUs
that are unexpired and outstanding as of immediately prior to the Effective Time shall be treated as follows.
(i)
Vested Company RSUs. Each Vested Company RSU shall be cancelled and automatically converted into the right to receive an
amount in cash equal to the product of (A) the aggregate number of shares of Company Common Stock subject to the Vested Company RSU,
multiplied by (B) the Per Share Price, subject to any required withholding of Taxes (the “Vested RSU Consideration”).
(ii)
Unvested Company RSUs. Each Company RSU that is unexpired and outstanding as of immediately prior to the Effective Time
that is not a Vested Company RSU (the “Unvested Company RSUs”) shall be cancelled and replaced with a right to receive
an amount in cash, without interest, equal to (A) the amount of the Per Share Price multiplied by (B) the total number of shares
of Company Common Stock subject to such Unvested Company RSU immediately prior to the Effective Time (the “Cash Replacement
Company RSU Amounts”), which Cash Replacement Company RSU Amounts will, subject to the holder’s continued service with
the Parent and its Affiliates (including the Surviving Corporation and its Subsidiaries) through the applicable vesting dates, vest and
be payable at the same time as the Unvested Company RSUs for which such Cash Replacement Company RSU Amounts were exchanged would have
vested pursuant to its terms. All Cash Replacement Company RSU Amounts will have the same terms and conditions (including, with respect
to vesting (including accelerated vesting on specific terminations of employment, to the extent applicable)) as applied to the Unvested
Company RSUs for which they were exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement
or for such other administrative or ministerial changes as in the reasonable and good faith determination of Parent are appropriate to
conform the administration of the Cash Replacement Company RSU Amounts.
(b)
Company Options. Unless otherwise agreed to by the Parties, at the Effective Time, by virtue of the Merger, the Company
Options that are unexpired, unexercised, and outstanding as of immediately prior to the Effective Time shall be treated as follows:
(i)
Vested Options. Each Vested Company Option shall be cancelled and automatically converted into the right to receive an amount
in cash equal to the product of (A) the aggregate number of shares of Company Common Stock subject to such Vested Company Option,
multiplied by (B) the excess, if any, of the Per Share Price over the applicable per share exercise price under such Vested Company
Option, subject to any required withholding of Taxes (the “Vested Option Consideration”).
(ii)
Unvested Options. Each Company Option that is unexpired, unexercised, and outstanding as of immediately prior to the Effective
Time that is not a Vested Company Option (the “Unvested Company Options”) shall be cancelled and replaced with
a right to receive an amount in cash, without interest, equal to the product of (A) the aggregate number of shares of Company Common
Stock subject to such Unvested Company Option multiplied by (B) the excess, if any, of the Per Share Price over the applicable per
share exercise price under such Unvested Company Option, subject to any required withholding of Taxes (the “Cash Replacement
Company Option Amounts”), which Cash Replacement Company Option Amounts will, subject to the holder’s continued service
with the Parent and its Affiliates (including the Surviving Corporation and its Subsidiaries) through the applicable vesting dates, vest
and be payable at the same time as the Unvested Company Option for which such Cash Replacement Company Option Amounts were exchanged
would have vested pursuant to its terms. All Cash Replacement Company Option Amounts will have the same terms and conditions (including,
with respect to vesting (including accelerated vesting on specific terminations of employment, to the extent applicable)) as applied
to the award of Unvested Company Options for which they were exchanged, except for terms rendered inoperative by reason of the transactions
contemplated by this Agreement or for such other administrative or ministerial changes as in the reasonable and good faith determination
of Parent are appropriate to conform the administration of the Cash Replacement Company Option Amounts.
(iii)
Notwithstanding the foregoing, if the per share exercise price of any Company Option that is unexpired, unexercised, and outstanding
as of immediately prior to the Effective Time, is equal to or greater than the Per Share Price, such Company Option shall be cancelled
immediately upon the Effective Time pursuant to this Section 2.8(b) without payment or consideration.
(c)
Company SARs. Unless otherwise agreed to by the Parties, at the Effective Time, by virtue of the Merger, the Company SARs
that are unexpired, unexercised, and outstanding as of immediately prior to the Effective Time shall be treated as follows:
(i)
Vested SARs. Each Vested Company SAR shall be cancelled and automatically converted into the right to receive an amount
in cash equal to the product of (A) the aggregate number of shares of Company Common Stock subject to such Vested Company SAR, multiplied
by (B) the excess, if any, of the Per Share Price over the applicable per share exercise price under such Vested Company SAR, subject
to any required withholding of Taxes (the “Vested SAR Consideration”).
(ii)
Unvested SARs. Each Company SAR that is unexpired, unexercised, and outstanding as of immediately prior to the Effective
Time that is not a Vested Company SAR (the “Unvested Company SARs”) shall be cancelled and replaced with a right
to receive an amount in cash, without interest, equal to the product of (A) the aggregate number of shares of Company Common Stock
subject to such Unvested Company SAR multiplied by (B) the excess, if any, of the Per Share Price over the applicable per share
exercise price under such Unvested Company SAR, subject to any required withholding of Taxes (the “Cash Replacement Company
SAR Amounts”), which Cash Replacement Company SAR Amounts will, subject to the holder’s continued service with the Parent
and its Affiliates (including the Surviving Corporation and its Subsidiaries) through the applicable vesting dates, vest and be payable
at the same time as the Unvested Company SAR for which such Cash Replacement Company SAR Amounts were exchanged would have vested pursuant
to its terms. All Cash Replacement Company SAR Amounts will have the same terms and conditions (including, with respect to vesting (including
accelerated vesting on specific terminations of employment, to the extent applicable)) as applied to the award of Unvested Company SARs
for which they were exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement or
for such other administrative or ministerial changes as in the reasonable and good faith determination of Parent are appropriate to conform
the administration of the Cash Replacement Company SAR Amounts.
(iii)
Notwithstanding the foregoing, if the per share exercise price of any Company SAR that is unexpired, unexercised, and outstanding
as of immediately prior to the Effective Time, is equal to or greater than the Per Share Price, such Company SAR shall be cancelled immediately
upon the Effective Time pursuant to this Section 2.8(c) without payment or consideration.
(d)
Payment Procedures. The Surviving Corporation shall pay on the first payroll date after the Closing Date the aggregate Vested
Option Consideration, Vested RSU Consideration and Vested SAR Consideration, as applicable, net of any applicable withholding Taxes, payable
with respect to each of the Vested Company Options, Vested Company RSUs and Vested Company SARs through, to the extent applicable, the
Surviving Corporation’s payroll (subject to any required tax withholdings) to the applicable holders of such Vested Company Options
and Vested Company RSUs, and Vested Company SARs. Notwithstanding the foregoing, if any payment owed to a holder of Company Options, Company
RSUs and Company SARs pursuant to Section 2.8(a), Section 2.8(b), or Section 2.8(c), as applicable,
cannot be made through the Surviving Corporation’s payroll system or payroll provider, then the Surviving Corporation will issue
a check for such payment to such holder, which check will be sent by overnight courier to such holder promptly following the Closing Date
(but in no event later than the first payroll date following the Closing Date) (subject to any required tax withholdings). Parent shall
ensure that the Surviving Corporation has sufficient funds to make all such payments by the time specified above.
(e)
Further Actions. The Company will take all action necessary to effect the cancellation and exchange, as applicable, of Company
RSUs, Company Options and Company SARs upon the Effective Time and to give effect to this Section 2.8 (including the satisfaction
of the requirements of Rule 16b-3(e) promulgated under the Exchange Act). All Company Equity Plans will terminate as of the Effective
Time, and the provisions in any other Employee Plan or Contract providing for the issuance or grant of any other interest in respect of
the capital stock of the Company Group will be cancelled as of the Effective Time, and the Company will take all action necessary to effect
the foregoing. The Company will use its reasonable best efforts to ensure that following the Effective Time no participant in any Company
Equity Plan or other Employee Plan will have any right thereunder to acquire any equity securities of the Company, the Surviving Corporation
or any of their respective Subsidiaries.
(f)
Treatment of Company Warrants.
(i)
As of the Effective Time, each outstanding and unexercised Company Warrant that, pursuant to the terms of such Company Warrant,
shall expire or terminate as a result of the Merger (each, a “Terminated Warrant”) without consideration shall
expire or terminate immediately prior to the Effective Time without any consideration payable therefor (whether in the form of cash or
otherwise) pursuant to the terms of such Terminated Warrant.
(ii)
As of the Effective Time, each outstanding and unexercised Company Warrant that, pursuant to the terms of such Company Warrant,
requires a payment to the holder thereof and provides for deemed exercise as a result of the Merger (each, an “In-the-Money
Warrant”) shall be cancelled and automatically converted into the right to receive an amount in cash calculated pursuant to
the terms of such In-the-Money Warrant.
(iii)
As of the Effective Time, unless otherwise agreed with the holders thereof prior to the Effective Time, each outstanding and unexercised
Company Warrant that, pursuant to the terms of such Company Warrant, does not provide for expiration, termination or deemed exercise as
a result of the Merger (each, an “Unexercised Warrant”) shall be converted into and thereafter evidence a warrant
entitling the holder thereof to receive upon exercise an amount in cash calculated pursuant to the terms of such Unexercised Warrant.
Following the Effective Time, each Unexercised Warrant shall be subject to the same terms and conditions as had applied to such Unexercised
Warrant as of immediately prior to the Effective Time, except for such terms rendered inoperative by reason of the Merger or as otherwise
set forth herein or in such Unexercised Warrant and subject to such adjustments as reasonably determined by Parent and the Company to
be necessary or appropriate to give effect to the conversion and the Merger.
(iv)
All payments contemplated by this Section 2.8(f) shall be made as promptly as practicable after the Effective Time,
and in any event no later than the later of the time for such payment contemplated by the applicable Company Warrant and the fifth Business
Day following the Effective Time. Parent shall ensure that the Surviving Corporation has sufficient funds to make all such payments by
the applicable times.
(v)
In connection with the Merger, the Company shall deliver any notices required under the terms of any outstanding Company Warrants
to the holders thereof, and the Company shall provide Parent and its counsel with a reasonable opportunity to review and comment on any
such notice and give due consideration to any such comments made by Parent and its counsel.
(vi)
The Company shall use its reasonable best efforts (A) to take (or cause to be taken) all actions; (B) do (or cause to
be done) all things; and (C) assist and cooperate with Parent in doing (or causing to be done) all things, in each case as are necessary,
proper or advisable to effectuate (promptly after the Closing) the termination of each Terminated Warrant, the proper exercise of each
In-the-Money Warrant by the holders thereof and the assumption by Parent or termination of each Unexercised Warrant, as applicable. The
Company may not deliver any materials to holders of the Company Warrants without providing Parent and its counsel with a reasonable opportunity
to review and comment on any such materials, and the Company shall give due consideration to any such comments made by Parent and its
counsel.
2.9
Exchange of Certificates.
(a)
Payment Agent. Prior to the Closing, Parent will (i) select a bank or trust company reasonably acceptable to the Company
to act as the payment agent for the Merger (the “Payment Agent”); and (ii) enter into a payment agent agreement,
in form and substance reasonably acceptable to the Company, with such Payment Agent.
(b)
Payment Fund. At or prior to the Closing, Parent will deposit (or cause to be deposited) with the Payment Agent, by wire
transfer of immediately available funds, for payment to the holders of shares of Company Common Stock pursuant to Section 2.7,
an amount of cash equal to the aggregate consideration to which such holders of Company Common Stock become entitled pursuant to Section 2.7.
Until disbursed in accordance with the terms and conditions of this Agreement, such cash will be invested by the Payment Agent, as directed
by Parent, in (i) obligations of or fully guaranteed by the United States or any agency or instrumentality thereof and backed by
the full faith and credit of the United States with a maturity of no more than 30 days; (ii) commercial paper obligations rated A-1
or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively; or (iii) certificates
of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1,000,000,000 (based
on the most recent financial statements of such bank that are then publicly available) (such cash and any proceeds thereon, the “Payment
Fund”). To the extent that (x) there are any losses with respect to any investments of the Payment Fund; (y) the Payment
Fund diminishes for any reason below the level required for the Payment Agent to promptly pay the cash amounts contemplated by Section 2.7;
or (z) all or any portion of the Payment Fund is unavailable for Parent (or the Payment Agent on behalf of Parent) to promptly pay
the cash amounts contemplated by Section 2.7 for any reason, Parent shall, or shall cause the Surviving Corporation to, promptly
replace or restore the amount of cash in the Payment Fund so as to ensure that the Payment Fund is at all times fully available for distribution
and maintained at a level sufficient for the Payment Agent to make the payments contemplated by Section 2.7. Any income from
investment of the Payment Fund will be payable to Parent.
(c)
Payment Procedures.
(i)
Promptly following the Effective Time (and in any event within three Business Days), Parent and the Surviving Corporation shall
cause the Payment Agent to mail to each holder of record (as of immediately prior to the Effective Time) of (i) a certificate or
certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock (other than Dissenting
Company Shares and Owned Company Shares) (the “Certificates”); and (ii) uncertificated shares of Company
Common Stock that represented outstanding shares of Company Common Stock (other than Dissenting Company Shares and Owned Company Shares)
(the “Uncertificated Shares”) (A) a letter of transmittal in customary form (which will specify that delivery
will be effected, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Payment Agent);
and (B) instructions for use in effecting the surrender of the Certificates and Uncertificated Shares in exchange for the Per Share
Price payable in respect thereof pursuant to Section 2.7.
(ii)
Upon surrender of Certificates for cancellation to the Payment Agent, together with such letter of transmittal, duly completed
and validly executed in accordance with the instructions thereto, the holders of such Certificates will be entitled to receive in exchange
therefor an amount in cash equal to the product obtained by multiplying (x) the aggregate number of shares of Company Common Stock
represented by such Certificates; by (y) the Per Share Price (less any applicable withholding Taxes payable in respect thereof),
and the Certificates so surrendered will forthwith be cancelled. Upon receipt of an “agent’s message” by the Payment
Agent (or such other evidence, if any, of transfer as the Payment Agent may reasonably request) in the case of a book-entry transfer of
Uncertificated Shares, the holders of such Uncertificated Shares will be entitled to receive in exchange therefor an amount in cash equal
to the product obtained by multiplying (1) the aggregate number of shares of Company Common Stock represented by such holder’s
transferred Uncertificated Shares; by (2) the Per Share Price (less any applicable withholding Taxes payable in respect thereof),
and the transferred Uncertificated Shares so surrendered will be cancelled. The Payment Agent will accept such Certificates and transferred
Uncertificated Shares upon compliance with such reasonable and customary terms and conditions as the Payment Agent may impose to cause
an orderly exchange thereof in accordance with normal exchange practices.
(iii)
No interest will be paid or accrued for the benefit of holders of the Certificates and Uncertificated Shares on the Per Share Price
payable upon the surrender of such Certificates and Uncertificated Shares pursuant to this Section 2.9(c). Until so surrendered,
outstanding Certificates and Uncertificated Shares will be deemed from and after the Effective Time to evidence only the right to receive
the Per Share Price, without interest thereon, payable in respect thereof pursuant to Section 2.7. Notwithstanding anything
to the contrary in this Agreement, no holder of Uncertificated Shares will be required to provide a Certificate or an executed letter
of transmittal to the Payment Agent in order to receive the payment that such holder is entitled to receive pursuant to Section 2.7.
(d)
DTC Payment. Prior to the Effective Time, Parent and the Company will cooperate to establish procedures with the Payment
Agent and the Depository Trust Company (“DTC”) with the objective that (i) if the Closing occurs at or prior to
11:30 a.m., Eastern time, on the Closing Date, then the Payment Agent will transmit to DTC or its nominees on the Closing Date an
amount in cash, by wire transfer of immediately available funds, equal to (A) the number of shares of Company Common Stock (other
than Owned Company Shares and Dissenting Company Shares) held of record by DTC or such nominee immediately prior to the Effective Time;
multiplied by (B) the Per Share Price (such amount, the “DTC Payment”); and (ii) if the Closing occurs
after 11:30 a.m., Eastern time, on the Closing Date, then the Payment Agent will transmit the DTC Payment to DTC or its nominees
on the first Business Day after the Closing Date.
(e)
Transfers of Ownership. If a transfer of ownership of shares of Company Common Stock is not registered in the stock transfer
books or ledger of the Company, or if the Per Share Price is to be paid in a name other than that in which the Certificates surrendered
or transferred in exchange therefor are registered in the stock transfer books or ledger of the Company, the Per Share Price may be paid
to a Person other than the Person in whose name the Certificate so surrendered or transferred is registered in the stock transfer books
or ledger of the Company only if such Certificate is properly endorsed and otherwise in proper form for surrender and transfer and the
Person requesting such payment has paid to Parent (or any agent designated by Parent) any transfer Taxes required by reason of the payment
of the Per Share Price to a Person other than the registered holder of such Certificate, or established to the satisfaction of Parent
(or any agent designated by Parent) that such transfer Taxes have been paid or are otherwise not payable. Payment of the applicable Per
Share Price with respect to Uncertificated Shares will only be made to the Person in whose name such Uncertificated Shares are registered.
(f)
No Liability. Notwithstanding anything to the contrary set forth in this Agreement, none of the Payment Agent, Parent, the
Surviving Corporation or any other Party will be liable to a holder of shares of Company Common Stock for any amount properly paid to
a public official pursuant to any applicable abandoned property, escheat or similar Law.
(g)
Distribution of Payment Fund to Parent. Any portion of the Payment Fund that remains undistributed to the holders of the
Certificates or Uncertificated Shares on the date that is one year after the Effective Time will be delivered to Parent upon demand, and
any holders of shares of Company Common Stock that were issued and outstanding immediately prior to the Merger who have not theretofore
surrendered or transferred their Certificates or Uncertificated Shares representing such shares of Company Common Stock for exchange pursuant
to this Section 2.9 will thereafter look for payment of the Per Share Price payable in respect of the shares of Company Common
Stock represented by such Certificates or Uncertificated Shares solely to Parent (subject to abandoned property, escheat or similar Laws),
solely as general creditors thereof, for any claim to the Per Share Price to which such holders may be entitled pursuant to Section 2.7.
Any amounts remaining unclaimed by holders of any such Certificates or Uncertificated Shares two years after the Effective Time, or at
such earlier date as is immediately prior to the time at which such amounts would otherwise escheat to, or become property of, any Governmental
Authority, will, to the extent permitted by applicable Law, become the property of Parent free and clear of any claims or interest of
any such holders (and their successors, assigns or personal representatives) previously entitled thereto.
2.10
No Further Ownership Rights in Company Common Stock. From and after the Effective Time, (a) all shares of Company
Common Stock will no longer be outstanding and will automatically be cancelled, retired and cease to exist; and (b) each holder of
a Certificate or Uncertificated Shares theretofore representing any shares of Company Common Stock will cease to have any rights with
respect thereto, except the right to receive the Per Share Price payable therefor in accordance with Section 2.7, or in the
case of Dissenting Company Shares, the rights pursuant to Section 2.7(c). The Per Share Price paid in accordance with the
terms of this Article II will be deemed to have been paid in full satisfaction of all rights pertaining to such shares of
Company Common Stock.
From and after the Effective
Time, there will be no further registration of transfers on the records of the Surviving Corporation of shares of Company Common Stock
that were issued and outstanding immediately prior to the Effective Time, other than transfers to reflect, in accordance with customary
settlement procedures, trades effected prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares
are presented to the Surviving Corporation for any reason, they will (subject to compliance with the exchange procedures of Section 2.9(c))
be cancelled and exchanged as provided in this Article II.
2.11
Lost, Stolen or Destroyed Certificates. In the event that any Certificates have been lost, stolen or destroyed, the
Payment Agent will issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, the Per Share Price
payable in respect thereof pursuant to Section 2.7. Parent or the Payment Agent may, in its discretion and as a condition
precedent to the payment of such Per Share Price, require the owners of such lost, stolen or destroyed Certificates to deliver a bond
in such amount as it may direct as indemnity against any claim that may be made against Parent, the Surviving Corporation or the Payment
Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.
2.12
Required Withholding. Notwithstanding anything herein to the contrary, each of the Payment Agent, Parent and its Affiliates,
the Company, the Company’s Subsidiaries and the Surviving Corporation will be entitled to deduct and withhold from any amounts payable
pursuant to this Agreement to any holder or former holder of shares of Company Common Stock, Company RSUs, Company Options or Company
SARs, or any other Person such amounts as are required to be deducted or withheld therefrom pursuant to any Tax Laws. To the extent that
such amounts are so deducted or withheld and paid over to the appropriate Governmental Authority, such amounts will be treated for all
purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
2.13
No Dividends or Distributions. No dividends or other distributions with respect to capital stock of the Surviving Corporation
with a record date on or after the Effective Time will be paid to the holder of any unsurrendered Certificates or Uncertificated Shares.
2.14
Necessary Further Actions. If, at any time after the Effective Time, any further action is necessary or desirable to
carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property,
rights, privileges, powers and franchises of the Company and Merger Sub, then the directors and officers of the Company and Merger Sub
as of immediately prior to the Effective Time will take all such lawful and necessary action.
Article III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
With respect to any
Section of this Article III, except (a) as disclosed in the reports, statements and other documents filed by the
Company with the SEC or furnished by the Company to the SEC, in each case pursuant to the Exchange Act on or after January 1, 2023
and prior to the date hereof (other than any disclosures contained or referenced therein under the captions “Risk
Factors,” “Cautionary Note Regarding Forward-Looking Statements,” “Quantitative and Qualitative Disclosures
About Market Risk” and any other disclosures contained or referenced therein of information, factors or risks that are
predictive, cautionary or forward-looking in nature) (the “Recent SEC Reports”) (it being
(i) understood that any matter disclosed in any Recent SEC Report will be deemed to be disclosed in a section of the Company
Disclosure Letter only to the extent that it is reasonably apparent on the face of such disclosure in such Recent SEC Report that it
is applicable to such section of the Company Disclosure Letter; and (ii) acknowledged that nothing disclosed in the Recent SEC
Reports will be deemed to modify or qualify the representations and warranties set forth in Section 3.3, Section 3.4, Section 3.8
or Section 3.19; or (b) subject to the terms of Section 9.12, as set forth in the disclosure letter
delivered by the Company to Parent and Merger Sub on the date hereof (the “Company Disclosure Letter”)), the
Company hereby represents and warrants to Parent and Merger Sub as follows:
3.1
Organization; Good Standing.
(a)
The Company has been duly incorporated and is validly existing under the Laws of the State of Delaware. The Company has the requisite
corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being
conducted, except where the failure to have such power and authority would not have a Company Material Adverse Effect. The Company is
duly licensed or qualified and in good standing as a foreign or extra-provincial corporation (or other entity, if applicable) in each
jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified
or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not have a Company
Material Adverse Effect.
(b)
The Company has made available to Parent true, correct and complete copies of the Charter and the Amended and Restated Bylaws of
the Company (the “Bylaws”), each as amended as of the date of this Agreement not filed with or incorporated by
reference into the Company SEC Reports. The Company is not in breach or violation of any of the provisions contained in the Charter or
Bylaws in any material respect.
3.2
Subsidiaries. A complete list of each Subsidiary of the Company and its jurisdiction of incorporation, formation or
organization, as applicable, and the name of any equityholder other than the Company or any Subsidiary of the Company, is set forth on
Section 3.2 of the Company Disclosure Letter. The Subsidiaries of the Company have been duly formed or organized and are validly
existing under the Laws of their jurisdiction of incorporation or organization and have the requisite power and authority to own, lease
or operate all of their respective properties and assets and to conduct their respective businesses as they are now being conducted, except
where the failure to be so formed or organized or be validly existing or have such power and authority would not have a Company Material
Adverse Effect. Each Subsidiary of the Company is duly licensed or qualified and in good standing as a foreign or extra-provincial corporation
(or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as
to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified
or in good standing would not have a Company Material Adverse Effect. The Company has made available to Parent true, correct and complete
copies of the certificates of incorporation, bylaws and other similar organizational documents of each “significant subsidiary”
(as defined in Rule 1-02(w) of Regulation S-X promulgated by the SEC) of the Company, each as amended to as of the date of this Agreement.
No Subsidiary of the Company is in violation of its charter, bylaws or other similar organizational documents, except for such violations
that would not have a Company Material Adverse Effect.
3.3 Corporate
Power; Enforceability. The Company has the requisite corporate power and authority to (a) execute and deliver this
Agreement; (b) perform its covenants and obligations hereunder; and (c) subject to receiving the Requisite Stockholder
Approval, consummate the Merger Transactions. The execution and delivery of this Agreement by the Company, the performance by the
Company of its covenants and obligations hereunder, and the consummation of the Merger Transactions have been duly authorized by all
necessary corporate action on the part of the Company and no additional corporate actions on the part of the Company are necessary
to authorize (i) the execution and delivery of this Agreement by the Company; (ii) the performance by the Company of its
covenants and obligations hereunder; or (iii) subject to the receipt of the Requisite Stockholder Approval, the consummation of
the Merger Transactions. 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 a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability (A) may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally; and
(B) is subject to general principles of equity (the preceding clauses (A) and (B), the “Enforceability
Limitations”).
3.4
Company Board Approval; Fairness Opinion; Anti-Takeover Laws.
(a)
Company Board Approval. The Company Board has, by unanimous vote of directors present at a duly constituted meeting of the
Company Board, which constituted a valid quorum in accordance with the Charter and the Bylaws, (i) determined that this Agreement
and the Merger, in accordance with the DGCL and upon the terms and subject to the conditions set forth herein, are advisable and in the
bests interests of the Company and its stockholders; (ii) approved the execution and delivery of this Agreement by the Company, the
performance by the Company of its covenants and other obligations hereunder, and the consummation of the Merger upon the terms and conditions
set forth herein; and (iii) resolved, on the terms and subject to the conditions of this Agreement, to recommend that the Company
Stockholders adopt this Agreement and adopt this Agreement in accordance with the DGCL (collectively, the “Company Board
Recommendation”), which Company Board Recommendation has not been withdrawn, rescinded or modified in any way as of the date
of this Agreement.
(b)
Fairness Opinion. The Company Board has received the written opinion (or an oral opinion to be confirmed in writing) of
Evercore Group L.L.C. (the “Advisor”), to the effect that, as of the date of such opinion, and based upon and
subject to the various limitations, qualifications, assumptions and other matters set forth therein, the Per Share Price to be received
pursuant to, and in accordance with, the terms of this Agreement by the holders of shares of Company Common Stock (other than holders
of Owned Company Shares and Dissenting Company Shares) is fair, from a financial point of view, to such holders (it being understood and
agreed that such written opinion is for the benefit of the Company Board and may not be relied upon by Parent or Merger Sub). Promptly
following the date of this Agreement, the Company will make available to Parent, solely for informational purposes, a written copy of
such opinion.
(c)
Anti-Takeover Laws. Assuming that the representations of Parent and Merger Sub set forth in Section 4.6 and
Section 4.11 are true and correct, the Company Board has taken all necessary actions so that the restrictions on business
combinations set forth in Section 203 of the DGCL and any other similar applicable “anti-takeover” Law will not be applicable
to the Merger.
3.5
Requisite Stockholder Approval. The affirmative vote of the holders of a majority of the outstanding shares of Company
Common Stock entitled to vote on the Merger (the “Requisite Stockholder Approval”) is the only vote of the holders
of any class or series of Company Capital Stock that is necessary pursuant to applicable Law, the Charter or the Bylaws to adopt this
Agreement and consummate the Merger.
3.6
Non-Contravention. Subject to the receipt of the Governmental Approvals set forth in Section 3.7, the execution
and delivery by the Company of this Agreement and the consummation of the Merger Transactions do not and will not (a) subject to
receipt of the Requisite Stockholder Approval, violate or conflict with any provision of, or result in the breach of, or default under
the Charter or Bylaws, (b) violate or conflict with any provision of, or result in the breach of, or default under any Law (subject,
in the case of the DGCL, to receipt of the Requisite Stockholder Approval), Permit or Governmental Order applicable to the Company or
any of the Company’s Subsidiaries, (c) violate or conflict with any provision of, or result in the breach of, result in the
loss of any right or benefit, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under any Contract of the type described in Section 3.15(a)
to which the Company or any of the Company’s Subsidiaries is a party or by which the Company or any of the Company’s Subsidiaries
may be bound, or terminate or result in the termination of any such foregoing Contract or (d) result in the creation of any Lien
(other than Permitted Liens) upon any of the properties or assets of the Company or any of the Company’s Subsidiaries, except, in
the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not (x) have a Company Material
Adverse Effect or (y) reasonably be expected to prevent or materially impair or materially delay the consummation of the Merger.
3.7
Requisite Governmental Approvals. Assuming the truth and completeness of the representations and warranties of Parent
contained in this Agreement, no consent, waiver, approval or authorization of, or designation, declaration or filing with, or notification
to, any Governmental Authority (each, a “Governmental Approval”) is required on the part of the Company or its
Subsidiaries with respect to the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby,
except for (a) applicable requirements of applicable U.S. and state securities Laws or Nasdaq; (b) any Governmental Approvals
required on the part of the Company or its Subsidiaries, the absence of which would not have a Company Material Adverse Effect or prevent,
materially impair or materially delay the ability of the Company to perform or comply with, on a timely basis, any material obligation
of the Company under this Agreement or to consummate the transactions contemplated hereby or thereby; and (c) the filing of the Certificate
of Merger in accordance with the DGCL.
3.8
Company Capitalization.
(a)
Capital Stock. The authorized Company Capital Stock consists of (i) 500,000,000 shares of Company Common Stock and
(ii) 10,000,000 shares of Company Preferred Stock. As of 5:00 p.m., Eastern Time, on July 16, 2024 (such time and date, the “Capitalization
Date”), (w) 49,226,944 shares of Company Common Stock were issued and outstanding; (x) no shares of Company Preferred
Stock were issued and outstanding; and (y) no shares of Company Capital Stock were held by the Company as treasury shares. All outstanding
shares of Company Common Stock are validly issued, fully paid, nonassessable and free of any preemptive rights.
(b) Stock Reservation.
As of the Capitalization Date, the Company has reserved (i) 447,014 shares of Company Common Stock for issuance pursuant to
the Company Equity Plan and (ii) no shares of Company Common Stock for issuance pursuant to the Company Warrants. As of the Capitalization
Date, there were outstanding:
(w) Company
RSUs representing the right to receive up to 2,278,430 shares of Company Common Stock;
(x) Company
Options to acquire 8,425,045 shares of Company Common Stock, with a weighted average exercise price of $1.92;
(y) Company
SARs to acquire 708,094 shares of Company Common Stock, with a weighted average exercise price of $2.88; and
(z) Company
Warrants representing the right to receive up to 8,478,541 shares of Company Common Stock, with a weighted average exercise price
of $1.12.
From the Capitalization Date
to the date of this Agreement, the Company has not issued or granted any shares of Company Common Stock or any other Securities, other
than shares of Company Common Stock issued pursuant to the Company Equity Plan or the exercise of Company Options, Company SARs, or Company
Warrants or the vesting and settlement of Company RSUs (in each case in accordance with the terms of such awards), in each case that were
outstanding as of the Capitalization Date.
(c)
Incentive Equity Awards. All Company Options, Company RSUs and Company SARs have been granted in accordance with the terms
of the Company Equity Plans. Each Company Option and Company SAR has been granted with an exercise price that is no less than the fair
market value of the underlying Company Common Stock on the date of grant, as determined in accordance with Section 409A of the Code
or Section 422 of the Code, if applicable. Each Company Option is intended to be exempt under Section 409A of the Code. Each
Company RSU is intended to be exempt under Section 409A of the Code. Each Company SAR is intended to be exempt under Section 409A
of the Code. The Company has made available to Parent, accurate and complete copies of:
(i)
the Company Equity Plans;
(ii)
the forms of standard award agreement under the Company Equity Plans;
(iii)
copies of any award agreements that materially deviate from such forms; and
(iv)
a list of all outstanding equity and equity-based awards as of the Capitalization Date granted under any Company Equity Plan, identifying
the holder, grant date, exercise price, vesting terms, form of award, expiration date, and number of shares underlying such award.
The treatment of the Company
Options, Company RSUs and Company SARs under this Agreement does not violate the terms of the applicable Company Equity Plan or any Contract
governing the terms of such awards.
(d)
Company Securities. Except as set forth in this Section 3.8, as of the Capitalization Date there were (i) other
than the Company Common Stock, no outstanding shares of capital stock of, or other equity or voting interest in, the Company; (ii) no
outstanding securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock of, or other
equity or voting interest in, the Company or any of its Subsidiaries; (iii) no outstanding options, warrants, rights or other commitments
or agreements to acquire from the Company or any of its Subsidiaries, or that obligate the Company or any of its Subsidiaries to issue
or register, or that restrict the transfer or voting of, any capital stock of, or other equity or voting interest in, or any securities
convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries;
(iv) no obligations of the Company or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible
or exchangeable security, or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest
(including any voting debt) in, the Company; or any of its Subsidiaries (the items in clauses (i), (ii), (iii) and (iv), together
with the Company Capital Stock, being referred to collectively as “Securities”), (v) no calls, subscriptions,
pre-emptive rights, Contracts, agreements, arrangements, understandings or other commitments of any kind for the purchase or issuance
of Securities to which the Company or any of its Subsidiaries is a party, (vi) no “phantom stock” or similar obligations
of the Company or any of its Subsidiaries, (vii) no Contracts requiring the Company or any of its Subsidiaries to acquire any equity
interest of any other Person and (viii) no other obligations by the Company or any of its Subsidiaries to make any payments based
on the price or value of any Securities or dividends paid thereon or revenues, earnings or financial performance or any other attribute
of the Company. There are no accrued and unpaid dividends with respect to any outstanding shares of Company Capital Stock. The Company
does not have a stockholder rights plan in effect.
(e)
Section 3.8(e) of the Company Disclosure Letter sets forth, as of the Capitalization Date, a true and complete list
of each outstanding Company Option, Company RSU, Company SAR and Company Warrants, as applicable, (i) the identification number of
each holder thereof; (ii) the date of grant (or if applicable, the date of repricing); (iii) the number of shares of Company
Common Stock subject to each Company Warrant; (iv) the number of shares of Company Common Stock subject to each award (deeming performance
goals as being satisfied); (v) the unvested portion of each such Company Option, Company RSU and Company SAR; (vi) the vesting
schedule of each such Company Option, Company RSU and Company SAR, and, if applicable, settlement schedule of such awards, including any
accelerated vesting provisions; (vii) the exercise or purchase price thereof, if applicable; and (viii) the expiration date
thereof, if applicable.
(f)
Each grant of a Company Option, Company RSU, Company SAR and Company Warrant was properly approved by the Company Board (or a
duly authorized committee or subcommittee thereof or the Company’s principal executive officer with due authorization) in compliance
in all material respects with Law, recorded on the Company’s consolidated financial statements in accordance with GAAP in all material
respects, and were validly issued, and no such grants involved any “back dating,” “forward dating” or similar
practices with respect to the effective date of the grant. The exercise price of each Company Option is not less than the fair market
value of a share of Company Common Stock on the date of grant (or if applicable, the date of repricing) of such Company Option.
(g)
Except for Company Options, Company RSUs and Company SAR and Company Warrants, there are no awards or rights outstanding as of
the Capitalization Date under the Company Equity Plans or the warrant agreements listed on Section 3.8(d) of the Company Disclosure
Letter.
(h)
Other Rights. The Company is not a party to any Contract relating to the voting of, requiring registration of, or granting
any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect to any Securities other than
the Company Registration Rights Agreements and the Company Warrants.
3.9
Capitalization of Subsidiaries.
(a)
The outstanding shares of capital stock or equity interests of each of the Company’s Subsidiaries (i) have been duly
authorized and validly issued, are, to the extent applicable, fully paid and non-assessable; (ii) have been offered, sold and issued
in compliance with applicable Law, including federal and state securities Laws, and all requirements set forth in (x) the certificate
of incorporation, bylaws or equivalent organizational documents of each such Subsidiary, and (y) any other applicable Contracts governing
the issuance of such securities; and (z) are not subject to, nor have they been issued in violation of, any purchase option, call
option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, the
certificate of incorporation, bylaws or equivalent organizational documents of each such Subsidiary or any Contract to which each such
Subsidiary is a party.
(b)
The Company owns of record and beneficially all the issued and outstanding shares of capital stock or equity interests of such
Subsidiaries free and clear of any Liens other than Permitted Liens. Except as set forth on Section 3.9 of the Company Disclosure
Letter, neither the Company nor its Subsidiaries hold any Securities of any Person.
3.10
Company SEC Reports. Since January 1, 2022, the Company has filed all forms, reports and documents with the SEC that
have been required to be filed by it pursuant to applicable Laws prior to the date of this Agreement (the “Company SEC Reports”).
Each Company SEC Report complied, as of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement,
on the date of such amended or superseded filing), in all material respects with the applicable requirements of the Securities Act or
the Exchange Act, as the case may be, each as in effect on the date that such Company SEC Report was filed. True, correct and complete
copies of all Company SEC Reports are publicly available in the Electronic Data Gathering, Analysis and Retrieval database of the SEC.
As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseded
filing), each Company SEC Report did not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No Subsidiary
of the Company is required to file any forms, reports or documents with the SEC.
3.11
Company Financial Statements; Internal Controls; Indebtedness.
(a)
Company Financial Statements. The consolidated financial statements (including any related notes and schedules) of the Company
Group filed with the Company SEC Reports (the “Company Financial Statements”) (i) were prepared in accordance
with GAAP (except as may be indicated in the notes thereto or as otherwise permitted by Form 10-Q with respect to any financial statements
filed on Form 10-Q, and except that the unaudited financial statements may not contain footnotes and are subject to normal and recurring
year-end adjustments); and (ii) fairly present, in all material respects, the consolidated financial position of the Company Group
as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended. Except as have been described
in the Company SEC Reports, there are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of the type
required to be disclosed under GAAP or pursuant to Item 303 of Regulation S-K promulgated by the SEC.
(b)
Disclosure Controls and Procedures. The Company has established and maintains “disclosure controls and procedures”
and “internal control over financial reporting” (in each case as defined pursuant to Rule 13a-15 and Rule 15d-15
promulgated under the Exchange Act). The Company’s disclosure controls and procedures are reasonably designed to ensure that all
(i) material information required to be disclosed by the Company in the reports and other documents that it files or furnishes pursuant
to the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC;
and (ii) such material information is accumulated and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley
Act. Since January 1, 2021, (x) the Company has been and is an “emerging growth company” as defined in Section 2(a)
of the Securities Act, (y) the Company has been and is a “smaller reporting company” as defined in Item 10(f)(1)
of Regulation S-K promulgated by the SEC, and (z) the principal executive officer and principal financial officer of the Company
have made all certifications required by the Sarbanes-Oxley Act. Neither the Company nor its principal executive officer or principal
financial officer has received notice from any Governmental Authority challenging or questioning the accuracy, completeness, form or manner
of filing of such certifications. For purposes of this Agreement, “principal executive officer” and “principal financial
officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act. The Company is in compliance in all material respects
with the applicable listing and other requirements of Nasdaq.
(c)
Controls. The Company has established and maintains a system of internal accounting controls that are reasonably designed
to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance
with GAAP, including policies and procedures that (i) require the maintenance of records that in reasonable detail accurately and
fairly reflect the transactions and dispositions of the assets of the Company Group; (ii) provide reasonable assurance that transactions
are recorded as necessary to permit preparation of financial statements in accordance with GAAP and that receipts and expenditures of
the Company Group are being made only in accordance with appropriate authorizations of the Company’s management and the Company
Board; and (iii) provide assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the
assets of the Company Group. Neither the Company nor, to the Knowledge of the Company, the Company’s independent registered public
accounting firm has identified or been made aware of (x) any significant deficiency or material weakness in the design or operation
of internal control over financial reporting of the Company Group that has not been subsequently remediated; or (y) any fraud that
involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal
control over financial reporting utilized by the Company Group. As of the date of this Agreement, there are no outstanding or unresolved
comments in comment letters received from the SEC with respect to the Company SEC Reports.
(d) Indebtedness.
Section 3.11(d) of the Company Disclosure Letter sets forth the Indebtedness for borrowed money of the Company and its Subsidiaries
as of the date of this Agreement, other than (i) Indebtedness reflected in the Audited Company Balance Sheet or otherwise included
in the Company SEC Reports and (ii) Indebtedness with a principal amount payable by the Company or its Subsidiaries of less than
$100,000.
3.12 No
Undisclosed Liabilities. There
is no other liability, debt or obligation of, or claim or judgment against, the Company or any of the Company’s Subsidiaries (whether
direct or indirect, absolute or contingent, accrued or unaccrued, known or unknown, liquidated or unliquidated, or due or to become due)
required by GAAP to be included on a consolidated balance sheet of the Company except for liabilities, debts, obligations, claims or
judgments (a) reflected or reserved against in the Audited Company Balance Sheet or in the consolidated financial statements of
the Company Group (including the notes thereto) included in the Company SEC Reports filed prior to the date of this Agreement, (b) that
have arisen since the date of the most recent balance sheet included in the Company Financial Statements in the ordinary course of business
of the Company and its Subsidiaries, (c) that will be discharged or paid off prior to or at the Closing, (d) arising in the
ordinary course of business under Contracts of the Company or any of its Subsidiaries existing as of the date of this Agreement, (e) intercompany
obligations or liabilities amongst the Company and its wholly-owned Subsidiaries or (f) which would not, individually or in the
aggregate, have a Company Material Adverse Effect.
3.13 Litigation
and Proceedings. Except as would not be material to the Company and its Subsidiaries: (a) there are no, and in the past three
(3) years there have been no pending or, to the Knowledge of the Company, Legal Proceedings threatened in writing or verbally, by or
against the Company or any of the Company’s Subsidiaries or their respective properties or assets; (b) other than examinations
conducted in the ordinary course of a Governmental Authority’s generally applicable supervisory jurisdiction, there are no investigations
or other inquiries or other Legal Proceedings that are pending, or, to the Knowledge of the Company, have been threatened against, the
Company or any of the Company’s Subsidiaries or their respective properties or assets by any Governmental Authority; (c) there
is no outstanding Governmental Order imposed upon the Company or any of the Company’s Subsidiaries, nor are any properties or assets
of the Company or any of the Company’s Subsidiaries’ respective businesses bound or subject to any Governmental Order. There
is no outstanding Governmental Order imposed upon the Company or any of the Company’s Subsidiaries that would prevent, materially
impair or materially delay the consummation of the Merger Transactions or the ability of the Company to fully perform its covenants and
obligations pursuant to this Agreement.
3.14 Legal
Compliance.
(a) Compliance
with Laws. Each of the Company and its Subsidiaries is, and for the prior three (3) years has been, in compliance with all applicable
Laws in all material respects. At no time during the prior three (3) years, has the Company or any of its Subsidiaries received any written
notice, or to the Knowledge of the Company, verbal from any Governmental Authority alleging any violation or noncompliance in any material
respect or material liability of, the Company or any of its Subsidiaries under any Healthcare Law that has been or is reasonably likely
to be material to the Company or any of its Subsidiaries.
(b) Except
as would not have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company,
any of their respective directors officers , employees or agents acting on behalf of the Company or any of its Subsidiaries, has during
the last three (3) years offered or given anything of value to: (i) any official or employee of a Governmental Authority, any
political party or official thereof, or any candidate for political office or (ii) any other Person, in any such case while knowing
that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to any official or employee
of a Governmental Authority or candidate for political office, in each case in violation of the Anti-Bribery Laws. Except as would not
have a Company Material Adverse Effect, to the Knowledge of the Company, there are no current or pending, and for the last three (3)
years there have been no, internal investigations, third-party investigations (including by any Governmental Authority), or internal or
external audits that address any material allegations or information concerning possible material violations of the Anti-Bribery Laws
related to the Company or any of the Company’s Subsidiaries.
(c) Except
as would not have a Company Material Adverse Effect, the Company and its Subsidiaries (i) are and for the last five (5) years
have been in compliance with all Anti-Money Laundering Laws, International Trade Laws and Sanctions Laws, and (ii) have obtained
all required licenses, consents, notices, waivers, approvals, orders, registrations, declarations, or other authorizations from, and have
made any filings with, any applicable Governmental Authority for the import, export, re-export, deemed export, deemed re-export, or transfer
required under the International Trade Laws and Sanctions Laws (the “Export Approvals”). Except as would not have
a Company Material Adverse Effect, there are no pending or, to the Knowledge of the Company, threatened, claims, complaints, charges,
investigations, voluntary disclosures or Legal Proceedings against the Company or any of the Company’s Subsidiaries related to any
Anti-Money Laundering Laws, International Trade Laws or Sanctions Laws or any Export Approvals. Neither the Company nor any of its Subsidiaries,
nor, to the Knowledge of the Company, any of their respective directors, officers, employees, or agents, (i) is, or has during the
past five (5) years, been a Sanctioned Person or (ii) (acting in their capacity as such) is transacting or has transacted business
directly or knowingly indirectly with, on behalf of, or for the benefit of any Sanctioned Person or in any Sanctioned Country in violation
of Sanctions Laws.
(d) No
material aspect of the business of the Company or any of its Subsidiaries has either presently or historically involved (i) the diagnosis
or treatment of diseases, the employment of healthcare professionals to provide clinical services, or any other activities that constitute
the practice of medicine under any Healthcare Law, (ii) the submission of medical claims to third-party payors or healthcare clearinghouses
for reimbursement, or (iii) the receipt of collections attributable to the payment of medical claims.
(e) Except
as would not be material to the Company or any of its Subsidiaries, neither the Company nor any of its Subsidiaries, nor any owner, director,
officer, “managing employee” (as such term is defined in 42 U.S.C. § 1320a-5(b)), or employee, or to the Knowledge of
the Company, contractor acting on behalf of the Company or its Subsidiaries is currently or has been, or to the Company Group’s
Knowledge, is threatened to be: (i) debarred, excluded or suspended from participating in any governmental health program; (ii) subject
to a civil monetary penalty assessed under Section 1128A of the Social Security Act, sanctioned, indicted or convicted of a crime, or
pled nolo contendere or to sufficient facts, in connection with any allegation of violation of any Healthcare Law; (iii) listed on
the General Services Administration published list of parties excluded from federal procurement programs and non-procurement programs;
(iv) subjected to any other debarment, exclusion, or sanction list or database.
(f) Except
as would not have a Company Material Adverse Effect, for the prior three (3) years, the Company and its Subsidiaries have established
and maintained a compliance program reasonably designed to promote compliance with Healthcare Laws and ethical standards.
3.15 Material
Contracts.
(a) List
of Material Contracts. Section 3.15(a) of the Company Disclosure Letter contains a listing of all Contracts described
in clauses (i) through (xiii) below to which, as of the date of this Agreement the Company or any of the Company’s
Subsidiaries is a party or by which they are bound, other than an Employee Plan (collectively, the “Material Contracts”).
True, correct and complete copies of the Material Contracts have previously been delivered to or made available to Parent or its agents
or representatives, together with all material amendments thereto.
(i) Any
“material contract” (as defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC, other than those agreements
and arrangements described in Item 601(b)(10)(iii) of Regulation S-K) with respect to the Company Group, taken as a whole;
(ii) Any
material Contract with any of the Top Vendors;
(iii) Any
Contract that, in the twelve-month period ended March 31, 2024, was the source of $200,000 or more in revenue for the Company and
its Subsidiaries, based on amounts paid or payable;
(iv) Each
debenture, Contract or other evidence of Indebtedness for borrowed money of the Company or any of the Company’s Subsidiaries, including
any agreement or commitment for future loans, credit or financing, in each case, in excess of $100,000;
(v) Each
Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of the Company or any
of its Subsidiaries in the last three (3) years, in each case, involving payments in excess of $200,000 other than (A) Contracts
in which the applicable acquisition or disposition has been consummated and there are no liabilities of the Company or its Subsidiaries
remaining or obligations of the Company or its Subsidiaries ongoing and (B) any disposition of assets by the Company or any of its
Subsidiaries in the ordinary course of business;
(vi) The
Leases set forth on Section 3.22(b) of the Company Disclosure Letter;
(vii) Each
Contract involving the formation of a joint venture, legal partnership or limited liability company (other than a wholly-owned Subsidiary
of the Company);
(viii) Each
Contract involving the licensing, transfer, development or assignment of Intellectual Property by or of the Company and its Subsidiaries
that is material to the business of the Company and its Subsidiaries (other than (A) Contracts under which the Company and its Subsidiaries
obtain rights to use generally commercially available technology or software with an annual license fee of less than $200,000, (B) Contracts
containing licenses granted to or received from end users, service providers, customers or partners in connection with the provision or
receipt of services or the licensing or sale of any product or service in the ordinary course of business on terms substantially the same
as the Company’s standard forms, (C) Contracts containing licenses that are merely incidental to the transaction contemplated
in such Contract, the commercial purposes of which is primarily for something other than such license (and such license is not material
to the Company), and (D) agreements with employees and independent contractors based substantially on the Company’s standard
forms; provided, that such agreements must include non-disclosure and Intellectual Property assignment provisions that are identical,
in all material respects, to the Company’s standard forms, in each case of clauses (A) – (D) on a non-exclusive basis;
(ix) Contracts
containing covenants of the Company or any of the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company
or any of the Company’s Subsidiaries to engage in or compete with any Person in any line of business or (B) prohibiting or
restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person in any geographic
area, in each case of clauses (A) and (B), that are material to the operation of the business of the Company and the Company’s
Subsidiaries, taken as a whole;
(x) Any
Contract that grants to any Person any preferred pricing, “most-favored nation” or similar rights that are material to the
operation of the business of the Company and the Company’s Subsidiaries, taken as a whole;
(xi) Any
Collective Bargaining Agreement;
(xii) Any
Contract that is a settlement, conciliation, or similar agreement with any Governmental Authority or pursuant to which the Company or
any of its Subsidiaries will have material outstanding obligations after the date of this Agreement; and
(xiii) Contracts
granting to any Person (other than the Company or its Subsidiaries) a right of first refusal or first offer to purchase or acquire exclusive
rights or ownership with respect to any Company Intellectual Property or to purchase or acquire equity interests in the Company or any
of the Company’s Subsidiaries.
(b) Validity.
As of the date hereof, all of the Material Contracts are (i) in full force and effect and (ii) represent the legal, valid and
binding obligations of the Company or the Subsidiary of the Company party thereto and, to the Knowledge of the Company, represent the
legal, valid and binding obligations of the counterparties thereto, in each case except for such failures to be in full force and effect
that would not have a Company Material Adverse Effect. Except, in each case, where the occurrence of such breach or default or failure
to perform would not be a Company Material Adverse Effect, (x) neither the Company, the Company’s Subsidiaries, nor, to the
Knowledge of the Company, any other party thereto is in breach of or default under any such Material Contract, (y) neither the Company
nor any of its Subsidiaries has received any written claim or notice of termination or breach of or default under any such Contract and
(z) to the Knowledge of the Company as of the date hereof, no event has occurred which individually or together with other events, would
reasonably be expected to result in a breach of or a default under any such Contract by the Company or its Subsidiaries or, to the Knowledge
of the Company, any other party thereto (in each case, with or without notice or lapse of time or both).
3.16 Employee
Plans.
(a) Section 3.16(a)
of the Company Disclosure Letter sets forth a complete list, as of the date of this Agreement, of each material “employee benefit
plan” as defined in Section 3(3) of ERISA and any other material plan, policy, program, or agreement (including any employment,
bonus, incentive or deferred compensation, equity or equity-based compensation, severance, retention, supplemental retirement, change
in control or similar plan, policy, program or agreement) providing compensation or other benefits to any current or former director,
officer, individual consultant or employee, which are maintained, sponsored or contributed to by the Company or any of the Company’s
Subsidiaries, or to which the Company or any of the Company’s Subsidiaries is a party or has or may have any liability, and in each
case whether or not (i) subject to the Laws of the United States, (ii) in writing or (iii) funded, but excluding in each
case any statutory plan, program or arrangement that is both required under applicable Law and maintained by any Governmental Authority
(each, an “Employee Plan”). The Company has delivered to Parent, to the extent applicable, true, complete and
correct copies of (v) each Employee Plan (or, if not written a written summary of its material terms), including all plan documents,
trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (w) the most recent summary plan descriptions,
including any summary of material modifications (x) the most recent annual report (Form 5500 series) filed with the IRS with
respect to such Employee Plan, (y) the most recent actuarial report or other financial statement relating to such Employee Plan,
and (z) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Employee Plan and any pending
request for such a determination letter.
(b) Except
as would not have a Company Material Adverse Effect, each Employee Plan has been established, operated, funded and administered in compliance
with its terms and all applicable Laws, including ERISA and the Code.
(c) No
Employee Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”)
or other pension plan that is or was subject to Title IV of ERISA or Sections 412 or 430 of the Code (“Title IV Plan”)
and neither the Company nor any of its ERISA Affiliates has sponsored or contributed to, been required to contribute to, or has any actual
or contingent liability under, a Multiemployer Plan or Title IV Plan, including at any time within the previous six (6) years. Neither
the Company nor any of its ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA that has not been fully
satisfied.
(d) Each
Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has received a current favorable
determination letter from the IRS. No member of the Company Group has any obligation to provide any post-employment, post-service or post-ownership
health or welfare benefits to any Person (except as required by Section 4980B of the Code and for which the covered Person pays the
full premium cost of coverage). No member of the Company Group has incurred (whether or not assessed) any material Tax or penalty under
Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code.
(e) Except
as would not have a Company Material Adverse Effect, with respect to each Employee Plan, no Legal Proceedings, actions, suits or claims
(other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of the Company, threatened.
(f) Except
as set forth on Section 3.16(f) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will, either alone or in combination with another event (such as termination
following the consummation of the transactions contemplated hereby), (i) entitle any current or former employee, officer or other
service provider of the Company or any Subsidiary of the Company to any severance pay or any other compensation or benefits payable or
to be provided by the Company or any Subsidiary of the Company, (ii) accelerate the time of payment, funding or vesting, or increase
the amount of compensation or benefits (including Company Options, Company RSUs and Company SARs) due to any such employee, officer or
other individual service provider by the Company or a Subsidiary of the Company, (iii) limit or restrict the right of Parent to merge,
amend or terminate any Employee Plan on or after the Effective Time, or (iv) result in any “excess parachute payment”
under Section 280G of the Code.
(g) Neither
the Company nor any of its Subsidiaries has any obligation to provide any Person a Tax gross-up, make whole or similar payment with respect
to Taxes, including those imposed under Sections 409A or 4999 of the Code.
(h) Except
as would not have a Company Material Adverse Effect, with respect to each Employee Plan subject to the Laws of any jurisdiction outside
the United States, (i) all employer contributions to each such Employee Plan required by applicable Law or by the terms of such Employee
Plan have been made, (ii) each such Employee Plan required to be registered has been registered and has been maintained in good standing
with applicable regulatory authorities and, to the Knowledge of the Company, and (iii) each such Employee Plan required to be fully
funded or fully insured, is fully funded or fully insured, including any back-service obligations, on an ongoing and termination or solvency
basis (determined using reasonable actuarial assumptions) in compliance with applicable Laws. Each Employee Plan subject to the Laws of
any jurisdiction outside the United States which provides retirement benefits is a defined contribution plan and all contributions have
been timely made with respect to any statutory plan, program or arrangement that is required under applicable Law and maintained by any
Governmental Authority.
3.17 Labor
Relations; Employees.
(a) Except
as set forth on Section 3.17(a) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party
to or bound by any collective bargaining agreement, or any similar Contract with any labor union, works council, or other labor organization
(each, a “Collective Bargaining Agreement”), no such agreement is being negotiated by the Company or any of the
Company’s Subsidiaries, and no labor union, works council, labor organization, group of employees or any other employee representative
body represents or has, to the Knowledge of the Company, requested or sought to represent any of the employees of the Company or its Subsidiaries.
To the Knowledge of the Company, there have been no labor organization activity involving any employees of the Company or any of its Subsidiaries.
In the past three (3) years, there has been no actual or, to the Knowledge of the Company, threatened strike, slowdown, work stoppage,
lockout, material labor grievance, labor arbitration or other material labor dispute against or affecting the Company or any Subsidiary
of the Company.
(b) Except
as would not have a Company Material Adverse Effect, each of the Company and its Subsidiaries are, and have been for the past three (3)
years, in compliance with all Laws respecting labor, employment and employment practices applicable to the Company and its Subsidiaries
(including in respect of each of its employees) including all Laws respecting terms and conditions of employment, health and safety, wages
and hours, holiday pay and the calculation of holiday pay, working time, employee classification (with respect to both exempt vs. non-exempt
status and employee vs. independent contractor and worker status), child labor, immigration, employment discrimination, harassment, retaliation,
disability rights or benefits, equal opportunity and equal pay, plant closures and layoffs (including WARN), affirmative action, workers’
compensation, labor relations, employee leave issues, restrictive covenants, pay transparency, employee trainings and notices, automated
employment decision tools and other artificial intelligence, and unemployment insurance.
(c) Except
as would not have a Company Material Adverse Effect, in the past three (3) years, the Company and its Subsidiaries have not received
(i) notice of any unfair labor practice charge or complaint before the National Labor Relations Board or any other Governmental Authority
against them, (ii) notice of any complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement, (iii) notice
of any charge or complaint with respect to or relating to them before the Equal Employment Opportunity Commission or any other Governmental
Authority responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Authority
responsible for the enforcement of labor, employment, wages and hours of work, worker classification, child labor, immigration, or occupational
safety and health Laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress,
or (v) notice of any Legal Proceeding by or before any Governmental Authority by or on behalf of any present or former employee or
other service provider of such entities, any applicant for employment or classes of the foregoing alleging misclassification, breach of
any express or implied Contract of employment, any applicable Law governing employment or the termination thereof or other discriminatory,
wrongful or tortious conduct in connection with the employment relationship, and with respect to each of (i) through (v) herein, no such
matters are pending or to the Knowledge of the Company, threatened.
(d) In
the past three (3) years, to the Knowledge of the Company, no Governmental Authority has determined that the Company or its Subsidiaries
has misclassified any individual as a non-employee.
(e) In
the past three (3) years, neither the Company nor any of the Company’s Subsidiaries has entered into a settlement agreement
with a current or former officer, employee or independent contractor of the Company or any of the Company’s Subsidiaries resolving
allegations made by such individual relating to sexual harassment or similar misconduct by either (i) an officer of the Company or
any of the Company’s Subsidiaries or (ii) a management-level employee of the Company or any of the Company’s Subsidiaries.
To the Knowledge of the Company, in the last three (3) years, no allegations of sexual harassment, discrimination, or similar misconduct,
and have been made against (x) an officer of the Company or any of the Company’s Subsidiaries or (y) a management-level
employee of the Company or any of the Company’s Subsidiaries.
3.18 Tax
Matters.
(a) All
income and other material Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been timely
filed (taking into account any applicable extensions), all such Tax Returns (taking into account all amendments thereto) are true, complete
and accurate in all material respects and all income and other material amounts of Taxes due and payable by the Company or any of its
Subsidiaries (whether or not shown on any Tax Return) have been timely paid in full.
(b) The
Company and each of its Subsidiaries have complied in all material respects with all applicable withholding and related reporting and
record-keeping requirements.
(c) The
Company and each of its Subsidiaries has in all material respects properly (i) collected and remitted sales, use, valued added and similar
Taxes with respect to sales or leases made or services provided to its customers and (ii) for all sales, leases or provision of services
that are exempt from sales, use, valued added and similar Taxes and that were made without charging or remitting sales, use, valued added
or similar Taxes, received and retained any appropriate Tax exemption certificates and other documentation qualifying such sale, lease
or provision of services as exempt.
(d) The
Company is, and since its inception has been, classified as corporation for U.S. federal income Tax and applicable state and local income
Tax purposes. Section 3.18(d) of the Company Disclosure Letter sets forth the U.S. federal income tax classification of each
other member of the Company Group.
(e) Neither
the Company nor any of its Subsidiaries has waived any statute of limitations in respect of any material amounts of Taxes or agreed to
any extension of time with respect to a material Tax assessment or deficiency (except for automatic extensions of time to file Tax Returns
obtained in the ordinary course of business), which waiver or extension is currently in effect.
(f) There
are no Liens for Taxes (other than Liens for Taxes not yet due and payable) upon the property or assets of the Company or any of its Subsidiaries.
(g) No
claim, assessment, deficiency or proposed adjustment for any income or other material amount of Tax has been asserted or assessed by any
Governmental Authority against the Company or any of its Subsidiaries that remains unpaid.
(h) There
are no Tax audits or other examinations of the Company or any of its Subsidiaries presently in progress, nor has the Company or any of
its Subsidiaries been notified in writing of any request or threat for such an audit or other examination, and there are no waivers, extensions
or requests for any waivers or extensions of any statute of limitations currently in effect with respect to any income or other material
Taxes of the Company or any of its Subsidiaries.
(i) Neither
the Company nor any of its Subsidiaries has made a request for a tax ruling, request for technical advice, a request for a change of any
method of accounting or any similar request that is in progress or pending with any Governmental Authority with respect to any Taxes.
(j) Neither
the Company nor any of its Subsidiaries is a party to or bound by any Tax indemnification or Tax sharing agreement (other than any such
agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts not primarily related to Taxes).
(k) Neither
the Company nor any of its Subsidiaries has been a party to any transaction treated by the parties as a distribution of stock qualifying
for Tax-free treatment under Section 355 of the Code in the three (3) years prior to the date of this Agreement.
(l) Neither
the Company nor any of its Subsidiaries (i) is liable for Taxes of any other Person (other than the Company and its Subsidiaries)
under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor
or by Contract (other than customary commercial Contracts not primarily related to Taxes) or (ii) has ever been a member of an affiliated,
consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes or foreign tax purposes, other than
a group the common parent of which was or is the Company or any of its Subsidiaries.
(m) No
written claim has been made by any Governmental Authority where the Company or any of its Subsidiaries does not file Tax Returns that
it is or may be subject to taxation in that jurisdiction and, to Company’s knowledge, there is no basis for any such claim to be
made.
(n) Neither
the Company nor any of its Subsidiaries has, or has ever had, a permanent establishment in any country other than the country of its organization,
or is, or has ever been, subject to income Tax in a jurisdiction outside of the country of its organization.
(o) Neither
the Company nor any of its Subsidiaries has participated in or is participating in a “reportable transaction” within the meaning
of Section 6707A(c)(2) of the Code.
(p) Neither
the Company nor any of its Subsidiaries will be required to include any material amount in taxable income, exclude any material item of
deduction or loss from taxable income, or make any adjustment under Section 481 of the Code (or any similar provision of state, local
or foreign Law) for any taxable period (or portion thereof) ending after the Closing Date as a result of (i) any installment sale,
intercompany transaction described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local
or foreign Law) or open transaction disposition made on or prior to the Closing Date, (ii) any prepaid amount received or deferred
revenue recognized on or prior to the Closing Date (other than amounts received in the ordinary course of business), (iii) any change
in method of accounting for a taxable period ending on or prior to the Closing Date, (iv) any “closing agreement” as
described in Section 7121 of the Code (or any similar provision of state, local or foreign Law), or (v) the application of Section 965(a)
of the Code. None of the Company or any of its Subsidiaries has made an election pursuant to Section 965(h) of the Code (or any similar
provision of state, local or foreign Law).
(q) The
Company is not and has not been a “United States real property holding company” within the meaning of Section 897(c)(2)
of the Code during the period specified in Section 897(c)(1)(A)(ii) of the Code.
(r) The
Company does not derive “substantial value” from assets located in India for Indian Tax Law purposes and the transactions
contemplated by this Agreement will not be subject to capital gains taxation under Indian Tax Law on the indirect transfer of the capital
stock of any Indian Subsidiary of the Company.
3.19 Brokers.
Except for the Advisor, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or
other commission in connection with the transactions contemplated hereby based upon arrangements made by the Company, any of the
Company’s Subsidiaries’ or any of their Affiliates for which Parent, the Company or any of the Company’s
Subsidiaries has any obligation. A redacted copy of the engagement letter with the Advisor has been made available to Parent prior
to the date of this Agreement and the fees and expenses set forth in the unredacted portion thereof are the total amount of fees and
expenses due to the Advisor.
3.20 Insurance.
Except as would not have a Company Material Adverse Effect, each of the insurance
policies held by, or for the benefit of, the Company or any of the Company’s Subsidiaries in effect as of the date of this Agreement
are in full force and effect, all premiums due have been paid, and no notice of cancellation or termination has been received by the
Company or any of the Company’s Subsidiaries with respect to any such policy. Prior to the date of this Agreement, the Company
has made available to Parent correct and complete copies of the material insurance policies in effect as of the date of this Agreement
(or where no such copies are available, a reasonably detailed written description thereof).
3.21 Permits.
The Company Group holds, in all material respects, to the extent legally required,
all permits, licenses, variances, clearances, consents, commissions, franchises, exemptions, orders and approvals from Governmental Authorities
(“Permits”) that are required for the operation
of the business of the Company Group as currently conducted. The Company Group complies with the terms of all Permits, and no suspension
or cancellation of any of the Permits is pending or, to the Knowledge of the Company, threatened, except for such noncompliance, suspensions
or cancellations that would not have a Company Material Adverse Effect.
3.22 Real
Property.
(a) The
Company Group does not own any real property.
(b) Section 3.22(b)
of the Company Disclosure Letter contains a true, correct and complete list, as of the date of this Agreement, of all of the existing
leases, subleases, licenses or other agreements, pursuant to which the Company Group uses or occupies, or has the right to use or occupy,
now or in the future, any real property in excess of 1,000 square feet (such property, the “Leased Real Property,”
and each such lease, sublease, license or other agreement, a “Lease”). The Company has made available to Parent
true, correct and complete copies of all Leases (including all material modifications, amendments and supplements thereto). With respect
to each Lease and except as would not have a Company Material Adverse Effect or materially and adversely affect the current use by the
Company or its Subsidiaries of the Leased Real Property, (i) to the Knowledge of the Company, there are no disputes with respect
to such Lease; (ii) the Company or one of its Subsidiaries has not collaterally assigned or granted any other security interest in
such Lease or any interest therein; and (iii) there are no Liens (other than Permitted Liens) on the estate or interest created by
such Lease. Except as would not have a Company Material Adverse Effect, the Company or one of its Subsidiaries has a valid, binding and
enforceable leasehold estate in the Leased Real Property, free and clear of all Liens (other than Permitted Liens) subject to the Enforceability
Limitations. Except as would not have a Company Material Adverse Effect, neither the Company Group, nor to the Knowledge of the Company,
any other party to the Lease is in breach of or default pursuant to any Lease.
(c) Section 3.22(c)
of the Company Disclosure Letter contains a true, correct and complete list of all of the existing material subleases, licenses or similar
agreements (each, a “Sublease”) as of the date hereof granting to any Person, other than the Company Group, any
right to use or occupy, now or in the future, the Leased Real Property. With respect to each of the Subleases, except as would not have
a Company Material Adverse Effect, (i) to the Knowledge of the Company, there are no disputes with respect to such Sublease; (ii) the
other party to such Sublease is not an Affiliate of, and otherwise does not have any economic interest in, the Company Group.
3.23 Intellectual
Property.
(a) Section 3.23(a)
of the Company Disclosure Letter sets forth a true, correct and complete list as of the date of this Agreement of all (i) Company
Registered Intellectual Property; and (ii) Legal Proceedings before any Governmental Authority (other than actions related to the
ordinary course prosecution of Company Registered Intellectual Property before the United States Patent and Trademark Office or the equivalent
authority anywhere in the world) related to any material Company Registered Intellectual Property. None of the material Company Registered
Intellectual Property is jointly owned with any third Person. Except as would not have a Company Material Adverse Effect, the Company
Intellectual Property is subsisting and, to the Knowledge of the Company, valid, and enforceable.
(b) Except
as would not be a Company Material Adverse Effect, the Company and its Subsidiaries, taken as a whole, (i) own, free and clear of
all Liens (other than Permitted Liens) all Company Intellectual Property and (ii) have valid rights to use all other Intellectual
Property used in the operation of the Company’s and its Subsidiaries’ business. Each of the Company and its Subsidiaries uses
commercially reasonable efforts to require Persons who have contributed, developed or conceived any material Company Intellectual Property
to assign such Intellectual Property to the Company or the applicable Subsidiary.
(c) The
operation of the business of the Company Group, as such business currently is conducted as of the date of this Agreement (i) does
not infringe, misappropriate, dilute or otherwise violate and (ii) in the last six (6) years has not infringed, misappropriated
or otherwise violated, in each case of clause (i) and (ii), the Intellectual Property of any third Person in a manner that resulted
in a Company Material Adverse Effect. There is no pending Legal Proceeding to which the Company or any of the Company’s Subsidiaries
is a named party, or to the Knowledge of the Company, that is threatened, in writing alleging the Company’s or its Subsidiaries’
infringement, misappropriation or other violation of any Intellectual Property of any Person, except as would not have a Company Material
Adverse Effect.
(d) To
the Knowledge of the Company as of the date of this Agreement (i) no Person is infringing upon, misappropriating or otherwise violating
any Company Intellectual Property, except as would not reasonably be expected to have a Company Material Adverse Effect, and (ii) the
Company and its Subsidiaries have not sent to any Person within the three (3) years preceding the date of this Agreement any written
notice, charge, complaint, claim or other written assertion against any Person claiming infringement or violation by or misappropriation
of any Company Intellectual Property.
(e) The
Company and its Subsidiaries take commercially reasonable measures to protect the confidentiality of material trade secrets included in
the Company Intellectual Property, and to the Knowledge of the Company, except as would not be material to the Company and its Subsidiaries
individually or in the aggregate, there has not been any unauthorized disclosure of or unauthorized access to same in any manner that
has resulted in the misappropriation of, or loss of any such trade secrets.
(f) Except
as would not have a Company Material Adverse Effect, the Company Systems do not contain any undisclosed or hidden device, code or feature
designed to disrupt, disable, or otherwise impair the functioning of any Software or any “back door,” “time bomb”,
“Trojan horse,” “worm,” “drop dead device,” or other malicious code or routines that are designed
to permit unauthorized access or the unauthorized disablement or unauthorized erasure of such Company System or information or data (or
any parts thereof) of the Company or its Subsidiaries.
(g) The
Company’s and its Subsidiaries’ use, distribution and conveyance of Software included in the Company Intellectual Property
is in compliance with any open source licenses applicable thereto and (ii) such use, distribution or conveyance described in clause (i)
does not require the disclosure, distribution or licensing of any source code of such Software included in the Company Intellectual Property,
in each case of clause (i) and (ii), except as would not have a Company Material Adverse Effect.
(h) None
of the Company nor any of its Subsidiaries has disclosed, made available or provided to any Person, or allowed any Person to access or
use, any such source code described in subsection (g) above or other material confidential information of the Company Group, in each
case, other than to employees, contractors and consultants of the Company and its Subsidiaries that have a duty of confidentiality with
respect to same, or to other third parties subject to appropriate written confidentiality obligations, except as would not have a Company
Material Adverse Effect.
(i) Each
of the Company and its Subsidiaries uses commercially reasonable efforts to implement reasonable policies and procedures for the Company’s
or, as applicable, such Subsidiary’s use of AI Solutions. To the Knowledge of the Company, except as would not have a Company Material
Adverse Effect, the Company and its Subsidiaries (A) own or possess valid and, to the Knowledge of the Company, enforceable rights
to use any AI Solutions and AI Training Data used by the Company and its Subsidiaries and (B) have used commercially reasonably efforts
to comply with all license terms applicable to such AI Solutions and AI Training Data.
3.24 Privacy
and Cybersecurity.
(a) The
Company and its Subsidiaries are, and during the three (3) years preceding the date of this Agreement have been, in material compliance
with all of the following to the extent governing privacy, data protection, cybersecurity, or security breach notification or otherwise
relating to the access, creation, collection, processing, storage, use, maintenance, disclosure, distribution, sharing, retention, disposal,
transfer, transmission, receipt, import, disposal, disclosure, protection or performance of any other operation (collectively, “Processing”
or “Processed”) of Personal Information by or for the Company or its Subsidiaries: (i) applicable Laws, including
HIPAA (ii) the Company’s and its Subsidiaries’ published, public-facing notices (the “Privacy Policies”),
and (iii) the Company’s and its Subsidiaries’ contractual obligations, (collectively, (i)-(iii), “Personal Information
Laws and Policies”) except in each case of (i)-(iii), except as would not be material to the Company. There are no (A) current
Legal Proceedings to which the Company or any of the Company’s Subsidiaries is a named party or, (B) to the Knowledge of the
Company, threatened in writing against the Company or its Subsidiaries, in each case, alleging a violation of any Personal Information
Laws and Policies by the Company or any of the Company’s Subsidiaries, in the case of (B), except as would not be material to the
Company or any of its Subsidiaries, and during the three (3) years preceding the date of this Agreement, there have been no such
Legal Proceedings brought against the Company or any of the Company’s Subsidiaries. Neither the Company nor any of the Company’s
Subsidiaries has as of the date of this Agreement received any written notice from (x) any Governmental Authority or (y) except
as would not be material to the Company or any of its Subsidiaries, any other Person, in each case with respect to (x) and (y), relating
to an alleged violation of Personal Information Laws and Policies by the Company or any of the Company’s Subsidiaries.
(b) During
the three (3) years preceding the date of this Agreement, there have been no material actual (i) breaches, cyberattacks, security
incidents, unauthorized uses, or other unauthorized access to the Company Systems, including any “breach” of “unsecured
protected health information” (as defined by HIPAA) (ii) unauthorized Processing of any Personal Information or material confidential
information stored thereon or Processed thereby), and (iii) there has been no incident that has caused any material disruption to,
or interruption in, the Company Systems. The Company and its Subsidiaries take, and during the three (3) years preceding the date of this
Agreement have taken, commercially reasonable measures designed to protect confidential or sensitive information (including Personal Information)
Processed by or for the Company or any of its Subsidiaries against unauthorized access, use, modification, loss, disclosure, other Processing,
or any other misuse, in each case, except as would not have a Company Material Adverse Effect.
(c) Except
as would not be material to the Company or any of its Subsidiaries, the Company and its Subsidiaries have (i) at all times obtained
written permission prior to engaging in the de-identification of client Personal Information or providing data aggregation services; (ii) de-identified
all Personal Information in accordance with HIPAA; and (iii) not sold, licensed, or otherwise commercialized any “protected
health information” (as defined in HIPAA).
3.25 Environmental
Matters. Except as would not have a Company Material Adverse Effect, none of
the Company and its Subsidiaries (a) has received any written notice alleging that the Company or any of its Subsidiaries has violated,
or has any liability under, any applicable Environmental Law; (b) has transported, produced, processed, manufactured, generated,
used, treated, handled, stored, released or disposed, or arranged for the disposal, of any Hazardous Substances in violation of, or as
would give rise to liability under, any applicable Environmental Law; (c) has exposed any employee or other Person to Hazardous
Substances in violation of or in a manner giving rise to liability under any applicable Environmental Law; (d) is a party to or
is subject to any pending or, to the Knowledge of the Company, threatened Legal Proceeding (i) alleging the noncompliance by or
liability of the Company or its Subsidiaries with any Environmental Law; or (ii) seeking to impose any financial responsibility
for any investigation, cleanup, removal or remediation pursuant to any Environmental Law; (e) has failed or is failing to comply
with any Environmental Law; or (f) to the Knowledge of the Company, does not own or operate any property or facility contaminated
by any Hazardous Substance which has resulted or would reasonably be expected to result in liability to the Company or any of its Subsidiaries
under Environmental Law.
3.26 Absence
of Certain Changes. Since the date of the consolidated balance sheet of the
Company Group as of March 31, 2024, set forth in the Company’s quarterly report on Form 10-Q filed by the Company with the
SEC for the period ended March 31, 2024 (the “Latest Company Balance Sheet”)
through the date hereof, (a) except in connection with the consideration by the Company of a potential strategic transaction or
in connection with the transactions contemplated hereby, the business of the Company and the Company’s Subsidiaries has been conducted
in all material respects in the ordinary course of business and (b) neither the Company nor its Subsidiaries has taken any action
which, if taken after the date of this Agreement and prior to the Closing, would constitute a violation of subsections (a),
(b), (e), (g), (h), (l), (m) or (t) of Section 5.2. From the date of the Latest Company Balance Sheet to the date of this Agreement,
there has not been any Company Material Adverse Effect.
3.27 Government
Contracts. The Company is not party to: (a) any Contract, including an individual task order, delivery order, purchase order,
basic ordering agreement, letter Contract or blanket purchase agreement between the Company or any of its Subsidiaries, on one hand,
and any Governmental Authority, on the other hand, or (b) any subcontract or other Contract by which the Company or one of its Subsidiaries
has agreed to provide goods or services through a prime contractor directly to a Governmental Authority that is expressly identified
in such subcontract or other Contract as the ultimate consumer of such goods or services. Neither the Company nor any of its Subsidiaries
have provided any offer, bid, quotation or proposal to sell products made or services provided by the Company or any of its Subsidiaries
that, if accepted or awarded, would lead to any Contract or subcontract of the type described by the foregoing sentence.
3.28 Top Vendors.
(a) Section 3.28(a)
of the Company Disclosure Letter sets forth, as of the date of this Agreement, the top ten (10) vendors, in each case, based on the
aggregate Dollar value of the Company’s and its Subsidiaries’ transaction volume with such counterparty during the trailing
twelve months for the period ending December 31, 2023 (the “Top Vendors”).
(b) Except
as set forth on Section 3.28(b) of the Company Disclosure Letter, none of the Top Vendors has, as of the date of this Agreement,
to the Knowledge of the Company, threatened to, terminate, cancel, or materially limit or materially and adversely modify any of its existing
business with the Company or any of the Company’s Subsidiaries (other than due to the expiration of an existing contractual arrangement),
and to the Knowledge of the Company, none of the Top Vendors is, as of the date of this Agreement, otherwise involved in or threatening
in writing a material dispute against the Company or its Subsidiaries or their respective businesses.
3.29 Related
Person Transactions. Except for indemnification, compensation or other employment arrangements in the ordinary course of business,
including any Company RSUs, Company SARs, or Company Options, and for the Company Warrants (as applicable), there are no current or proposed
Contracts, transactions, arrangements or understandings between the Company Group, on the one hand, and any Affiliate (including any
director or officer) thereof, but not including any wholly owned Subsidiary of the Company, on the other hand, that would be required
to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC in the Company’s Form 10-K or proxy
statement pertaining to an annual meeting of stockholders that has not been so disclosed.
3.30 No Additional
Representations or Warranties. Notwithstanding any provision of this Agreement
to the contrary, except as provided in this Article III or in any certificate received by Parent or Merger Sub pursuant to
Section 7.2(c), neither the Company nor any of its Affiliates, nor any of their respective directors, managers, officers,
employees, equityholders, partners, members or representatives has made, or is making, any representation or warranty whatsoever to Parent
or Merger Sub or their Affiliates and no such party shall be liable in respect of the accuracy or completeness of any information provided
to Parent or Merger Sub or their Affiliates.
Article IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub hereby
represent and warrant to the Company as follows:
4.1 Organization;
Good Standing.
(a) Parent.
Parent (i) is a corporation duly organized, validly existing and in good standing pursuant to the DGCL; and (ii) has the requisite
corporate power and authority to conduct its business as it is presently being conducted and to own, lease or operate its properties and
assets.
(b) Merger
Sub. Merger Sub (i) is duly organized, validly existing and in good standing pursuant to the Laws of Delaware; and (ii) has
the requisite power and authority to conduct its business as it is presently being conducted and to own, lease or operate its properties
and assets.
(c) Organizational
Documents. Parent has made available to the Company true, correct and complete copies of the certificate of incorporation, bylaws
and other similar organizational documents of Parent and Merger Sub, each as amended to date. Neither Parent nor Merger Sub is in violation
of its certificate of incorporation, bylaws or other similar organizational document.
4.2 Power; Enforceability.
Each of Parent and Merger Sub has the requisite power and authority to (a) execute and deliver this Agreement; (b) perform
its covenants and obligations hereunder; and (c) consummate the Merger Transactions. The execution and delivery of this Agreement
by each of Parent and Merger Sub, the performance by each of Parent and Merger Sub of its respective covenants and obligations hereunder
and the consummation of the Merger Transactions have been duly authorized by all necessary action on the part of each of Parent and Merger
Sub and no additional actions on the part of Parent or Merger Sub are necessary to authorize (i) the execution and delivery of this
Agreement by each of Parent and Merger Sub; (ii) the performance by each of Parent and Merger Sub of its respective covenants and
obligations hereunder; or (iii) the consummation of the Merger Transactions. This Agreement has been duly executed and delivered
by each of Parent and Merger Sub and, assuming the due authorization, execution and delivery by the Company, constitutes a legal, valid
and binding obligation of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms,
subject to the Enforceability Limitations.
4.3 Non-Contravention.
The execution and delivery of this Agreement by each of Parent and Merger Sub,
the performance by each of Parent and Merger Sub of their respective covenants and obligations hereunder, and the consummation of the
Merger Transactions do not and will not (a) violate or conflict with any provision of the certificate of incorporation, bylaws or
other similar organizational documents of Parent or Merger Sub; (b) violate, conflict with, result in the breach of, constitute
a default (or an event that, with notice or lapse of time or both, would become a default) pursuant to, or result in the termination
of, or accelerate the performance required by, or result in a right of termination or acceleration pursuant to any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which
Parent or Merger Sub is a party or by which Parent, Merger Sub or any of their properties or assets may be bound; (c) assuming the
consents, approvals and authorizations referred to in Section 4.4 have been obtained, violate or conflict with any Law or
order applicable to Parent or Merger Sub or by which any of their properties or assets are bound; or (d) result in the creation
of any Lien (other than Permitted Liens) upon any of the properties or assets of Parent or Merger Sub, except in the case of each of
clauses (b), (c) and (d) for such violations, conflicts, breaches, defaults, terminations, accelerations or Liens that would not,
individually or in the aggregate, prevent or materially delay the consummation of the Merger Transactions or the ability of Parent and
Merger Sub to fully perform their respective covenants and obligations pursuant to this Agreement.
4.4 Requisite
Governmental Approvals. No consent of any Governmental Authority is required on the part of Parent, Merger Sub or any of their
Affiliates (a) in connection with the execution and delivery of this Agreement by each of Parent and Merger Sub; (b) the performance
by each of Parent and Merger Sub of their respective covenants and obligations pursuant to this Agreement; or (c) the consummation
of the Merger Transactions, except (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware
and such filings with Governmental Authorities to satisfy the applicable Laws of states in which the Company Group is qualified to do
business; (ii) such filings and approvals as may be required by any federal or state securities Laws, including compliance with
any applicable requirements of the Exchange Act; and (iii) such other consents the failure of which to obtain would not, individually
or in the aggregate, prevent or materially delay the consummation of the Merger Transactions or the ability of Parent and Merger Sub
to fully perform their respective covenants and obligations pursuant to this Agreement.
4.5 Legal Proceedings;
Orders.
(a) No
Legal Proceedings. As of the date hereof, there are no Legal Proceedings pending or, to the knowledge of Parent or any of its Affiliates,
threatened against Parent or Merger Sub that would, individually or in the aggregate, prevent or materially delay the consummation of
the Merger Transactions or the ability of Parent and Merger Sub to fully perform their respective covenants and obligations pursuant to
this Agreement.
(b) No
Orders. As of the date hereof, neither Parent nor Merger Sub is subject to any Governmental Order of any kind or nature that would
prevent or materially delay the consummation of the Merger Transactions or the ability of Parent and Merger Sub to fully perform their
respective covenants and obligations pursuant to this Agreement.
4.6 Ownership
of Company Capital Stock. None of Parent, Merger Sub or any of their respective directors, officers, general partners or Affiliates
or, to the knowledge of Parent or any of its Affiliates, any employees of Parent, Merger Sub or any of their Affiliates (a) has
owned, directly or indirectly, any shares of Company Capital Stock or other securities convertible into, exchangeable for or exercisable
for shares of Company Capital Stock; or (b) has been an “interested stockholder” (as defined in Section 203 of
the DGCL) of the Company, in each case during the three years prior to the date hereof.
4.7 Brokers.
Other than Morgan Stanley & Co. LLC, there is no financial advisor, investment banker, broker, finder, agent or other Person
that has been retained by or is authorized to act on behalf of Parent, Merger Sub or any of their Affiliates who is entitled to any financial
advisor’s, investment banking, brokerage, finder’s or other fee or commission in connection with the Merger Transactions.
4.8 Operations
and Ownership of Merger Sub. Merger Sub has been formed solely for the purpose of engaging in the Merger Transactions, and, prior
to the Effective Time, Merger Sub will not have engaged in any other business activities and will have incurred no liabilities or obligations
other than as contemplated by this Agreement, including any Debt Financing. Parent owns beneficially and of record all of the outstanding
capital stock, and other equity and voting interest in, Merger Sub free and clear of all Liens, except Permitted Liens and transfer restrictions
imposed by applicable securities Laws.
4.9 No Parent
Vote or Approval Required. No vote or consent of the holders of any capital stock of, or other equity or voting interest in, Parent
is necessary to approve this Agreement and the Merger Transactions. The vote or consent of Parent, as the sole stockholder of Merger
Sub, is the only vote or consent of the capital stock of, or other equity interest in, Merger Sub necessary to approve this Agreement
and the Merger Transactions.
4.10 Sufficient
Funds.
(a) Parent
as of the date hereof has, and as of the Closing will have, sufficient available cash on hand or other sources of immediately available
funds, necessary to consummate the Merger, including payment of the Per Share Price, all other amounts due under Article II
and all other fees and expenses required to be paid by Parent and Merger Sub, in each case, at the Closing.
(b) Parent
and Merger Sub understand and acknowledge that their obligations under this Agreement are not in any way contingent upon or otherwise
subject to or conditional upon Parent’s consummation of any financing arrangements, Parent’s obtaining of any financing or
the availability, grant, provision or extension of any financing to Parent.
4.11 Stockholder
and Management Arrangements. As of the date hereof, except for the Voting Agreements,
neither Parent or Merger Sub nor any of their respective Subsidiaries or Affiliates is a party to, or has authorized, made or entered
into, or committed or agreed to enter into, directly or indirectly, any Contract with any party known by Parent or Merger Sub (or their
respective Affiliates) to be a beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of any outstanding Company Capital
Stock or any, director, officer or employee or any other Affiliate of the Company Group (a) regarding any continuing employment
or consulting relationship with the Surviving Corporation or any of its Subsidiaries, businesses or operations from and after the Effective
Time, or (b) pursuant to which any such Person (i) would roll over any of their shares of Company Common Stock or other equity
interests in the Company into equity interests in Parent or Merger Sub or any other entity or be entitled to receive consideration of
a different amount or nature or other differential consideration than the consideration to which such owner or other Person is entitled
pursuant to Article II, (ii) has agreed to approve this Agreement or vote against any Superior Proposal or (iii) has
agreed to provide, directly or indirectly, equity investment to Parent or Merger Sub to finance any portion of the Merger Transactions.
4.12 Other Interests.
Neither Parent nor Merger Sub has acquired, or has agreed to acquire, in any manner (including by purchasing a substantial portion
of the assets of or equity in) any business or any corporation, partnership, association or other business organization or division thereof
that would reasonably be expected to: (a) impose any material delay in the obtaining of, or materially increase the risk of not
obtaining, any authorization, consent, order, declaration or approval of any Governmental Authority necessary to consummate the Merger
Transactions; (b) materially increase the risk of any Governmental Authority entering a Governmental Order prohibiting the consummation
of the Merger; (c) materially increase the risk of not being able to remove any such Governmental Order on appeal or otherwise;
or (d) prevent, materially impair or materially delay the consummation of the Merger Transactions.
4.13 Solvency.
Assuming the satisfaction of the conditions to Parent’s obligations to consummate
the Merger and the accuracy of the representations and warranties set forth in Article III (for this purpose, such representations
and warranties shall be true and correct in all material respects without otherwise giving effect to materiality qualifications therein),
as of the Effective Time and immediately after giving effect to the Merger Transactions (including the payment of all amounts payable
pursuant to Article II in connection with or as a result of the Merger Transactions and all related fees and expenses of
Parent, Merger Sub, the Company and their respective Subsidiaries in connection therewith), (a) the amount of the “fair saleable
value” of the assets of each of the Surviving Corporation and its Subsidiaries will exceed (i) the value of all liabilities
of the Surviving Corporation and such Subsidiaries, including contingent and other liabilities; and (ii) the amount that will be
required to pay the probable liabilities of each of the Surviving Corporation and its Subsidiaries; (b) each of the Surviving Corporation
and its Subsidiaries will not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged
or proposed to be engaged; and (c) each of the Surviving Corporation and its Subsidiaries will be able to pay its liabilities, including
contingent and other liabilities, as they mature. For purposes of the foregoing, “not have an unreasonably small amount of capital
for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, including
contingent and other liabilities, as they mature” means that such Person will be able to generate enough cash from operations,
asset dispositions or refinancing, or a combination thereof, to meet its obligations as they become due.
4.14 No Foreign
Ownership, Control or Influence. Neither Parent nor Merger Sub (a) is a “foreign person” or “foreign entity”,
as defined in Section 721 of the Defense Production Act of 1950, as amended, including all implementing regulations thereof; (b) is
under foreign ownership, control or influence as defined in the National Industrial Security Program Operating Manual; and (c) is
a “foreign person” within the meaning of the International Traffic in Arms Regulations.
4.15 Exclusivity
of Representations and Warranties.
(a) No
Other Representations and Warranties. Each of Parent and Merger Sub, on behalf of itself and its respective Subsidiaries, acknowledges
and agrees that, except for the representations and warranties expressly set forth in Article III or in any certificate received
by Parent or Merger Sub pursuant to Section 7.2(c):
(i) neither
the Company nor any of its Subsidiaries (or any other Person) makes, or has made, any representation or warranty relating to the Company,
its Subsidiaries or any of their businesses, operations or otherwise in connection with this Agreement or the Merger Transactions;
(ii) no
Person has been authorized by the Company Group or any of its Affiliates or Representatives to make any representation or warranty relating
to the Company Group or any of its businesses or operations or otherwise in connection with this Agreement or the Merger Transactions,
and if made, such representation or warranty must not be relied upon by Parent, Merger Sub or any of their respective Affiliates or Representatives
as having been authorized by the Company Group or any of its Affiliates or Representatives (or any other Person); and
(iii) the
representations and warranties made by the Company in this Agreement are in lieu of and are exclusive of all other representations and
warranties, including any express or implied or as to merchantability or fitness for a particular purpose, and the Company hereby disclaims
any other or implied representations or warranties, notwithstanding the delivery or disclosure to Parent, Merger Sub or any of their respective
Affiliates or Representatives of any documentation or other information (including any financial information, supplemental data or financial
projections or other forward-looking statements).
(b) Reliance.
Each of Parent and Merger Sub, on behalf of itself and its Subsidiaries, acknowledges and agrees that, except for the representations
and warranties expressly set forth in Article III or in any certificate received by Parent or Merger Sub pursuant to Section 7.2(c),
it is not acting (including, as applicable, by entering into this Agreement or consummating the Merger Transactions) in reliance on or
in any other way relying on:
(i) any
representation or warranty, express or implied;
(ii) any
estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information provided or
addressed to Parent, Merger Sub or any of their respective Affiliates or Representatives, including any materials or information made
available in the electronic data room hosted by or on behalf of the Company in connection with the Merger Transactions, in connection
with presentations by the Company’s management or in any other forum or setting; or
(iii) the
accuracy or completeness of any other representation, warranty, estimate, projection, prediction, data, financial information, memorandum,
presentation or other materials or information.
Article V
INTERIM OPERATIONS OF THE COMPANY
5.1 Affirmative
Obligations. Except (w) as expressly contemplated by this Agreement; (x) as
required by applicable Law; (y) as set forth in Section 5.1 or Section 5.2 of the Company Disclosure Letter;
or (z) as approved by Parent (which approval will not be unreasonably withheld, conditioned or delayed), at all times during the
period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this
Agreement pursuant to Article VIII and the Effective Time, the Company will, and will cause each of its Subsidiaries to:
(a) use
its respective commercially reasonable efforts to maintain its existence in good standing pursuant to applicable Law;
(b) subject
to the restrictions and exceptions set forth in Section 5.2 or elsewhere in this Agreement, to conduct its business and operations
in the ordinary course of business in all material respects; and
(c) use
its respective commercially reasonable efforts to (x) preserve intact its material assets (including all material Company Intellectual
Property), properties, Contracts or other legally binding understandings, licenses and business organizations; (y) keep available
the services of its current officers and key employees; and (z) preserve the current relationships with customers, vendors, distributors,
partners (including platform partners, referral partners, consulting and implementation partners), lessors, licensors, licensees, creditors,
contractors and other Persons with which the Company Group has material business relations;
provided, that no action or failure to
act by the Company or any of its Subsidiaries with respect to the matters specifically addressed by any provision of Section 5.2
will be deemed a breach of this Section 5.1.
5.2 Forbearance
Covenants. Except (w) as set forth in Section 5.1 or Section 5.2 of the Company Disclosure Letter;
(x) as required by applicable Law, (y) as approved by Parent (which approval will not be unreasonably withheld, conditioned
or delayed); or (z) as expressly contemplated by the terms of this Agreement, at all times during the period commencing with the
execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII
and the Effective Time, the Company will not, and will not permit any of its Subsidiaries, to:
(a) amend
the Charter, the Bylaws or any other similar organizational document;
(b) propose
or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(c) issue,
sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase or otherwise) any Securities, except (A) for the issuance of shares of Company Common Stock upon
the vesting and exercise or settlement, as applicable, of Company Options, Company RSUs or Company SARs outstanding as of the Capitalization
Date pursuant to their terms in effect as of the date hereof under the applicable Company Equity Plan; or (B) pursuant to agreements set
forth in Section 3.8(d) of the Company Disclosure Letter as in effect on the date hereof;
(d) directly
or indirectly acquire, repurchase or redeem any Securities, except for (i) repurchases, withholdings, or cancellations of Securities
pursuant to the terms and conditions of Company Options, Company RSUs or Company SARs or Company Warrants outstanding as of the date hereof
in accordance with their terms in effect as of the date hereof under the applicable Company Equity Plan or Company Warrant, or (ii) transactions
between the Company and any of its direct or indirect Subsidiaries;
(e) (i) adjust,
split, combine or reclassify any shares of capital stock, or issue or authorize or propose the issuance of any other Securities in respect
of, in lieu of or in substitution for, shares of its capital stock or other equity or voting interest; (ii) declare, set aside or
pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any shares of capital
stock or other equity or voting interest, or make any other actual, constructive or deemed distribution in respect of the shares of capital
stock or other equity or voting interest, except for cash dividends made by any direct or indirect wholly-owned Subsidiary of the Company
to the Company or one of its other wholly-owned Subsidiaries; (iii) pledge or encumber any shares of its capital stock or other equity
or voting interest; or (iv) modify the terms of any shares of its capital stock or other equity or voting interest;
(f) (i) incur
or assume any Indebtedness (including any long-term or short-term debt, but excluding Indebtedness of the type described in Section 1.1(tt)(iv),
Section 1.1(tt)(vii), Section 1.1(tt)(viii) or Section 1.1(tt)(ix)) or issue any debt securities,
except (A) for trade payables incurred in the ordinary course of business; (B) obligations incurred pursuant to business credit
cards in the ordinary course of business; (C) intercompany loans or advances between or among the Company and/or its direct or indirect
Subsidiaries; and (D) borrowings incurred under the Revolving Line (as defined in pursuant to the Company Loan and Security Agreement
as of the date hereof) up to the lesser of (1) $500,000 and (2) the Available Amount (as defined in the Company Loan and Security
Agreement as of the date hereof); (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently
or otherwise) for the Indebtedness of any other Person, except with respect to obligations of direct or indirect wholly-owned Subsidiaries
of the Company;
(g) mortgage
or pledge any of its and its Subsidiaries’ assets, tangible or intangible, or create or suffer to exist any lien thereupon (other
than Permitted Liens), other than in connection with financing transactions permitted by Section 5.2(f) or consented to by
Parent;
(h) make
any loans, advances or capital contributions to, or investments in, any other Person, except for (i) extensions of credit to customers
in the ordinary course of business; (ii) advances to directors, officers and other employees for travel and other business-related
expenses, in each case in the ordinary course of business and in compliance in all material respects with the Company’s policies
related thereto; and (iii) loans, advances or capital contributions to, or investments in, direct or indirect wholly-owned Subsidiaries
of the Company in accordance with applicable Law;
(i) acquire,
lease, license, sell, abandon, transfer, assign, guarantee, or exchange any assets, tangible or intangible (including any Company Intellectual
Property), in each case in excess of $250,000 individually, and other than (1) the sale, lease or licensing of products or services
of the Company Group, (2) non-exclusive licensing of Company Intellectual Property on a standalone basis; (3) the acquisition,
assignment, transfer, guaranteeing or pledging of Company Intellectual Property, (4) abandoning or permitting any material Company
Intellectual Property to lapse; and (5) any capital expenditures permitted by (or consented to by Parent) under Section 5.2(n);
in each case of (1) – (5), in the ordinary course of business or in the Company’s reasonable business judgment;
(j)
(i) enter
into, adopt, amend (including accelerating the vesting, payment or funding), modify or terminate any Employee Plan or any other benefit
or compensation plan, program, policy, agreement or arrangement that would constitute an Employee Plan if in effect on the date hereof;
(ii) increase
the compensation or benefits of any current or former director, officer, employee, individual consultant, former employee, individual
independent contractor, or other individual service provider of the Company Group (other than any increase in the ordinary course of business
of the base salary of any employee of the Company Group with annual compensation (or an expected annual base compensation) below $200,000),
or any special bonus or special remuneration to any current or former director, officer, employee, individual consultant, individual independent
contractor or other individual service provider of the Company Group, or accelerate the timing of payment or vesting of any payment or
benefit under any Employee Plan or otherwise, except in the case of each of (i) and (ii), as may be required by applicable
Law or the terms of the applicable Employee Plan in effect as of the date hereof that is set forth on Section 3.16(a) of the
Company Disclosure Letter; or
(iii) enter
into any change in control, severance or similar agreement or any retention or similar agreement with any current or former officer, employee,
director, individual independent contractor, individual consultant, or other individual service provider of the Company Group, except
as may be required by applicable Law or the terms of the applicable Employee Plan in effect as of the date hereof that is set forth on
Section 3.16(a) of the Company Disclosure Letter;
(k) settle,
release, waive or compromise any pending or threatened material Legal Proceeding or other claim, except for the settlement of any Legal
Proceedings or other claim that is (i) reflected or reserved against in the Audited Company Balance Sheet; (ii) for solely monetary
payments by the Company (net of any insurance proceeds received or reasonably expected to be received) of no more than $350,000 individually
and $2,000,000 in the aggregate; or (iii) settled in compliance with Section 6.14;
(l) except
as required by applicable Law or GAAP, (i) revalue in any material respect any of its properties or assets, including writing-off
notes or accounts receivable, other than in the ordinary course of business; or (ii) make any change in any of its accounting principles
or practices;
(m) (i) make
(other than in the ordinary course of business and consistent with past practice) or change or revoke any material Tax election; (ii) settle,
consent to or compromise any material Tax claim or assessment or surrender a right to a material Tax refund; (iii) consent to any
extension or waiver of any limitation period with respect to any material Tax claim or assessment; (iv) file an amended material
Tax Return; (v) enter into a closing agreement with any Governmental Authority regarding any material Tax; (vi) adopt or change
any material method of accounting for Tax purposes; (vii) fail to pay any material Tax that becomes due and payable (including any
estimated tax payments); or (viii) change any U.S. federal income tax classification;
(n) incur
or commit to incur any capital expenditure(s) other than (i) as contemplated by the capital expenditure budget set forth in Section 5.2(n)
of the Company Disclosure Letter; (ii) expenditures that do not exceed $1,000,000 in the aggregate; (iii) pursuant to obligations in existence
as of the date hereof under any Material Contract or (iv) in connection with the repair or replacement of facilities, properties
or assets destroyed or damaged due to casualty or accident that are covered by insurance or otherwise reasonably advisable in order to
maintain business continuity;
(o) enter
into, modify or amend, or act to terminate (i) any Contract (other than any Material Contract) that if so entered into, modified,
amended or terminated would have a Company Material Adverse Effect; (ii) any Material Contract except in the ordinary course of business
or pursuant to any automatic termination, renewal or extension pursuant to terms of such Material Contract or (iii) any Company Warrant;
(p) engage
in any transaction with, or enter into any agreement, arrangement or understanding with, any Affiliate of the Company or other Person
covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404;
(q) implement
or announce a “plant closing,” “mass layoff” (each as defined in WARN), furlough, reduction in compensation, reduction-in-force,
or similar personnel action that could implicate WARN;
(r) grant
any material refunds, credits, rebates, or other allowances to any end user, customer, reseller or distributor, in each case other than
in the ordinary course of business;
(s) acquire
(by merger, consolidation or acquisition of stock or assets) any other Person or any material equity interest therein or enter into any
joint venture, legal partnership (excluding, for avoidance of doubt, strategic relationships, alliances, reseller agreements and similar
commercial relationships), limited liability corporation or similar legal arrangement with any third Person;
(t) (i) enter
into, modify, amend, extend, negotiate or terminate any Collective Bargaining Agreement, or (ii) recognize or certify any labor union,
works council, or other labor organization as the bargaining representative for any employees of the Company or any of its Subsidiaries;
(u) waive
or release any noncompetition, nonsolicitation, nondisclosure or other restrictive covenant obligation of any current or former employee
or independent contractor of the Company or any of its Subsidiaries;
(v) hire
or engage (other than to replace) any employee or independent contractor with annual compensation (or an expected annual compensation),
exclusive of equity grants, in excess of $200,000; or
(w) enter
into, authorize any of, or agree or commit to enter into a Contract to take any of the actions prohibited by this Section 5.2.
5.3 No Solicitation.
(a) No
Solicitation or Negotiation.
(i) Upon
the execution of this Agreement, subject to the terms of this Section 5.3, the Company will cease and cause to be terminated
any discussions or negotiations then ongoing with any Person and its Affiliates, directors, officers, employees, consultants, agents,
representatives and advisors (collectively, “Representatives”) that would be prohibited by this Section 5.3(a),
request the prompt return or destruction of all non-public information concerning the Company or its Subsidiaries theretofore furnished
to any such Person in connection with a potential Acquisition Proposal with whom a confidentiality agreement was entered into with respect
to a potential Acquisition Proposal, or any such Person who made an Acquisition Proposal, and (A) cease providing any further information
with respect to the Company or any Acquisition Proposal to any such Person or its Representatives in connection with any potential Acquisition
Proposal; and (B) terminate all access granted to any such Person and its Representatives to any physical or electronic data room.
(ii) Subject
to the terms of Section 5.3(b), from the date of this Agreement until the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time, the Company Group will not, and will not instruct, authorize or knowingly
permit any of its Representatives to, directly or indirectly:
(A) solicit,
initiate, propose or knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal
or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal;
(B) furnish
to any Person (other than to Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company
Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel,
of the Company Group (other than Parent, Merger Sub or any designees of Parent or Merger Sub), in any such case with the intent to induce
the making, submission or announcement of, or to knowingly encourage, facilitate or assist any proposal or inquiry that constitutes, or
is reasonably expected to lead to, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected
to lead to an Acquisition Proposal;
(C) participate
or engage in discussions or negotiations with any Person (other than its Representatives acting on its behalf or Parent, Merger Sub or
any designees of Parent or Merger Sub) with respect to an Acquisition Proposal (other than informing such Persons of the provisions contained
in this Section 5.3 and contacting the Person making the Acquisition Proposal to the extent necessary to clarify the terms
of the Acquisition Proposal);
(D) approve,
endorse, recommend or otherwise declare advisable an Acquisition Proposal or any other offers or proposals that would reasonably be expected
to lead to an Acquisition Proposal; or
(E) enter
into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition
Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement,
acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”).
Notwithstanding anything
in this Agreement to the contrary, from the date hereof until the earlier to occur of the termination of this Agreement pursuant to Article VIII
and the Effective Time, the Company will not be required to enforce, and will be permitted to waive, any provision of any standstill or
confidentiality agreement solely to the extent that such provision prohibits or purports to prohibit a confidential proposal being made
to the Company Board (or any committee thereof).
(b) Superior
Proposals. Notwithstanding anything to contrary set forth in this Agreement, from the date of this Agreement until the Company’s
receipt of the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly
through one or more of their Representatives (including the Company’s advisors), participate or engage in discussions or negotiations
with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books,
records or other non-public information, or to any personnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement
to any Person or its Representatives that has made or delivered to the Company an Acquisition Proposal after the date of this Agreement,
and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition
Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that did not result from any
material breach of Section 5.3(a); provided, however, that (i) the Company Board (or a committee thereof)
has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal
either constitutes a Superior Proposal, or would reasonably be expected to lead to, a Superior Proposal, and (ii) the Company Board
(or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the
failure to take the actions contemplated by this Section 5.3(b) would be or would reasonably be expected to be inconsistent
with its fiduciary obligations pursuant to applicable Law; and provided further, however, that the Company will promptly
(and in any event within 48 hours) make available to Parent any non-public information concerning the Company Group that is provided to
any such Person or its Representatives that was not previously made available to Parent.
(c) No
Change in Company Board Recommendation or Entry into an Alternative Acquisition Agreement. Except as provided by Section 5.3(d),
at no time after the date hereof may the Company Board (or a committee thereof):
(i)
(A) withhold,
withdraw, amend, qualify or modify, or publicly propose to withhold, withdraw, amend, qualify or modify, the Company Board Recommendation
in a manner adverse to Parent in any material respect;
(B) adopt,
approve, endorse, recommend or otherwise declare advisable an Acquisition Proposal;
(C) fail
to publicly reaffirm the Company Board Recommendation in response to an Acquisition Proposal that has been publicly disclosed within ten (10)
Business Days after Parent so requests in writing, provided, that the Company will not be obligated to reaffirm the Company Board
Recommendation more than once per Acquisition Proposal and each material modification thereof;
(D) fail
to publicly recommend against acceptance by the holders of shares of Company Capital Stock of a tender or exchange offer that if consummated
would constitute an Acquisition Transaction within 10 Business Days of the commencement thereof pursuant to Rules 14d-2 of the
Exchange Act; or
(E) fail
to include the Company Board Recommendation in the Proxy Statement;
(any action described in clauses (A)
through (E), a “Company Board Recommendation Change”); or
(ii) cause
or permit the Company Group to enter into an Alternative Acquisition Agreement.
(d) Company
Board Recommendation Change; Entry into Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this
Agreement, at any time prior to obtaining the Requisite Stockholder Approval:
(i) other
than in connection with a bona fide Acquisition Proposal that constitutes a Superior Proposal, the Company Board (or a committee thereof)
may effect a Company Board Recommendation Change in response to any positive material event, development or material change in circumstances
with respect to the Company that (x) was not actually known to, or reasonably foreseeable or expected by, the Company Board as of
the date hereof or if actually known, or reasonably foreseeable or expected, the consequences of which were not known, or reasonably foreseeable
or expected, as of the date hereof; and (y) does not relate to (1) any Acquisition Proposal; or (2) the mere fact, in and
of itself, that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings
or other financial or operating metrics for any period ending on or after the date hereof, or changes after the date hereof in the market
price or trading volume of the Company Common Stock or the credit rating of the Company (it being understood that the underlying cause
of any of the foregoing in this clause (2) may be considered and taken into account) (each such event, an “Intervening
Event”), if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor
and outside legal counsel) that the failure to do so would be or would reasonably be expected to be inconsistent with its fiduciary obligations
pursuant to applicable Law and if and only if:
(A) the
Company has provided prior written notice to Parent at least four Business Days in advance (the “Intervening Event Notice Period”)
to the effect that the Company Board (or a committee thereof) has (1) so determined; and (2) resolved to effect a Company Board
Recommendation Change pursuant to this Section 5.3(d)(i), which notice will specify the applicable Intervening Event in reasonable
detail as known by the Company; and
(B) prior
to effecting such Company Board Recommendation Change, the Company, during such Intervening Event Notice Period, must have, and must have
used its commercially reasonable efforts to cause its appropriate Representatives to have, negotiated with Parent and its Representatives
in good faith (to the extent that Parent desires to so negotiate) regarding any proposal by Parent in good faith to adjust the terms of
this Agreement so that the Company Board no longer determines that the failure to make a Company Board Recommendation Change in response
to such Intervening Event would be or would reasonably be expected to be inconsistent with its fiduciary obligations pursuant to applicable
Law; provided, however, that in the event of any material changes to the facts and circumstances relating to such Intervening
Event, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(i)
with respect to such new written notice (it being understood that the “Intervening Event Notice Period” in respect of such
new written notice will be two Business Days); or
(ii) if
the Company has received a bona fide Acquisition Proposal, that the Company Board (or a committee thereof) determines in good faith (after
consultation with its financial advisor and outside legal counsel) is a Superior Proposal, then the Company Board may (x) effect
a Company Board Recommendation Change with respect to such Acquisition Proposal; or (y) authorize the Company to terminate this Agreement
to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, in each case if and only if:
(A) the
Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel)
that the failure to do so would be or would reasonably be expected to be inconsistent with its fiduciary obligations pursuant to applicable
Law;
(B) the
Company Group and its Representatives have complied in all material respects with their obligations pursuant to this Section 5.3
with respect to such Acquisition Proposal;
(C) (1)
the Company has provided prior written notice to Parent at least four Business Days in advance (the “Superior Proposal Notice
Period”) to the effect that the Company Board (or a committee thereof) has (a) received an Acquisition Proposal that has
not been withdrawn; (b) determined in good faith that such Acquisition Proposal constitutes a Superior Proposal; and (c) resolved
to effect a Company Board Recommendation Change or to terminate this Agreement pursuant to this Section 5.3(d)(ii) absent
any revision to the terms and conditions of this Agreement that would cause such Acquisition Proposal to cease to be a Superior Proposal,
which notice will include the identity of the Person or “group” of Persons making such Acquisition Proposal, the material
terms thereof and copies of all relevant documents relating to such Acquisition Proposal; and (2) prior to effecting such Company
Board Recommendation Change or termination, the Company and its Representatives, during the Superior Proposal Notice Period, must have
negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) regarding any proposal
by Parent in good faith to the terms of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal;
provided, however, that in the event of any material revisions to such Acquisition Proposal, the Company will be required
to deliver a new written notice to Parent and to comply with the requirements of this Section 5.3(d)(ii) with respect to such
new written notice (it being understood that the “Superior Proposal Notice Period” in respect of such new written notice will
be two Business Days); and
(D) in
the event of any termination of this Agreement in order to cause or permit the Company Group to enter into an Alternative Acquisition
Agreement with respect to such Acquisition Proposal, the Company will have validly terminated this Agreement in accordance with Section 8.1(h),
including paying the Company Termination Fee in accordance with Section 8.3(b).
(e) Notice.
From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and
the Effective Time, the Company will promptly (and, in any event, within 48 hours) notify Parent if any inquiries, offers or proposals
that constitute an Acquisition Proposal are received by the Company or, to the Knowledge of the Company, any of its Representatives, or
any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company
or, to the Knowledge of the Company, any of its Representatives with respect to, or that constitute or would reasonably be expected to
lead to, an Acquisition Proposal. Such notice must include (i) the identity of the Person or “group” of Persons making
such offers or proposals (unless, in each case, such disclosure is prohibited pursuant to the terms of any confidentiality agreement with
such Person or “group” of Persons that is in effect on the date of this Agreement); and (ii) a summary of the material
terms and conditions of such Acquisition Proposal. Thereafter, the Company must keep Parent reasonably informed, on a prompt basis, of
the status (and supplementally provide the terms) of any such offers or proposals (including any amendments thereto) and the status of
any such discussions or negotiations. For purposes of this Section 5.3(e), “Knowledge” of the Company shall also
include the actual knowledge of the Company’s and its Subsidiaries’ directors, executive officers, legal counsel and financial
advisors.
(f) Certain
Disclosures. Nothing in this Agreement will prohibit the Company or the Company Board (or a committee thereof) from (i) taking
and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or complying
with Rule 14d-9 promulgated under the Exchange Act, including a “stop, look and listen” communication by the Company
Board (or a committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially
similar communication); (ii) complying with Item 1012(a) of Regulation M-A promulgated under the Exchange Act; (iii) informing
any Person of the existence of the provisions contained in this Section 5.3; or (iv) making any disclosure to the Company
Stockholders (including regarding the business, financial condition or results of operations of the Company Group) that the Company Board
(or a committee thereof) has determined to make in good faith in order to comply with applicable Law, regulation or stock exchange rule
or listing agreement, it being understood that any such statement or disclosure made by the Company Board (or a committee thereof) pursuant
to this Section 5.3(f) must be subject to the terms and conditions of this Agreement and will not limit or otherwise affect
the obligations of the Company or the Company Board (or any committee thereof) and the rights of Parent under this Section 5.3,
it being understood that nothing in the foregoing will be deemed to permit the Company or the Company Board (or a committee thereof) to
effect a Company Board Recommendation Change other than in accordance with Section 5.3(d). In addition, it is understood and
agreed that, for purposes of this Agreement, a factually accurate public statement by the Company or the Company Board (or a committee
thereof) that describes the Company’s receipt of an Acquisition Proposal, the identity of the Person making such Acquisition Proposal,
the material terms of such Acquisition Proposal and the operation of this Agreement with respect thereto will not, in and of itself, be
prohibited by this Agreement and will not be deemed to be (x) a withholding, withdrawal, amendment, or modification, or proposal
by the Company Board (or a committee thereof) to withhold, withdraw, amend, qualify or modify, the Company Board Recommendation; (y) an
adoption, approval or recommendation with respect to such Acquisition Proposal; or (C) a Company Board Recommendation Change.
(g) Breach
by Representatives. The Company agrees that any material breach of this Section 5.3 by any of its Representatives will
be deemed to be a breach of this Agreement by the Company.
Article VI
ADDITIONAL COVENANTS
6.1 Required
Action and Forbearance; Efforts.
(a) Reasonable
Best Efforts. Upon the terms and subject to the conditions set forth in this Agreement, Parent and Merger Sub, on the one hand, and
the Company, on the other hand, will use their respective reasonable best efforts (x) to take (or cause to be taken) all actions;
(y) do (or cause to be done) all things; and (z) assist and cooperate with the other Parties in doing (or causing to be done)
all things, in each case as are necessary, proper or advisable pursuant to applicable Law or otherwise to consummate and make effective,
in the most expeditious manner practicable, the Merger Transactions, including by using reasonable best efforts to:
(i) cause
the conditions to the Merger Transactions set forth in Article VII to be satisfied;
(ii) (A) obtain
all consents, waivers, approvals, orders and authorizations from Governmental Authorities; and (B) making all registrations, declarations
and filings with Governmental Authorities, in each case that are necessary or advisable to consummate the Merger Transactions; and
(iii) to
the extent specifically requested in writing by Parent, obtain all consents, waivers and approvals and delivering all notifications pursuant
to any Material Contracts in connection with this Agreement and the consummation of the Merger Transactions so as to maintain and preserve
the benefits to the Surviving Corporation of such Material Contracts as of and following the consummation of the Merger Transactions.
(b) No
Consent Fee. Notwithstanding anything to the contrary set forth in this Section 6.1 or elsewhere in this Agreement, the
Company Group will not be required to agree to the payment of a consent fee, “profit sharing” payment or other consideration
(including increased or accelerated payments), or the provision of additional security (including a guaranty), in connection with the
Merger Transactions, including in connection with obtaining any consent pursuant to any Material Contract.
6.2 Antitrust
Filings.
(a) Each
of Parent and the Company will use reasonable best efforts to supply (or cause the other to be supplied) any information that may be required
or requested by the FTC, the DOJ or the Governmental Authorities of any other applicable jurisdiction related to the Merger Transactions
and use reasonable best efforts to obtain any required consents pursuant to any Antitrust Laws applicable to the Merger Transactions,
in each case as soon as practicable. If any Party receives a request for additional information or documentary material from any Governmental
Authority with respect to the Merger Transactions pursuant to any Antitrust Laws applicable to the Merger Transactions, then such Party
will make (or cause to be made), as soon as reasonably practicable and after consultation with the other Parties, an appropriate response
to such request. Each of Parent and Merger Sub, on the one hand, and the Company (and its Affiliates, if applicable), on the other hand
agree that no Party may enter into any agreement or understanding with any Governmental Authority with respect to the Merger Transactions
without the prior written consent of the other Parties, which shall not be unreasonably withheld, conditioned or delayed.
(b) Divestitures.
In furtherance and not in limitation of the foregoing, if and to the extent necessary to obtain clearance of the Merger Transactions pursuant
to the HSR Act and any other Antitrust Laws applicable to the Merger Transactions, Parent shall (i) offer, negotiate, commit to and
effect, by consent decree, hold separate order or otherwise, (A) the sale, divestiture, license or other disposition of any and all
of the capital stock or other equity or voting interest, assets (whether tangible or intangible), rights, products or businesses of the
Company Group; and (B) any other restrictions on the activities of the Company Group; and (ii) contest, defend and appeal, and
the Company shall take any such action at the direction of Parent, any Legal Proceedings, whether judicial or administrative, challenging
this Agreement or the consummation of the Merger Transactions; provided, that notwithstanding anything in this Agreement to the
contrary, nothing in this Section 6.2(b) or any other provision of this Agreement shall require or obligate Parent, Merger
Sub, or any of Parent’s Affiliates or Subsidiaries to, and the Company shall not, without the prior written consent of Parent, agree
or otherwise be required to, take any action, including any action contemplated by this Section 6.2(b), with respect to any
of Parent’s Affiliates (excluding Merger Sub, but including (x) General Catalyst and any investment funds or investment vehicles
affiliated with, or managed and advised by, General Catalyst, and (y) any portfolio company (as such term is commonly understood
in the private equity industry) or investment of General Catalyst or of any such investment fund or investment vehicle, or any interest
therein), other than Parent and its Subsidiaries; provided, further, that the Parties shall not be obligated to take any
action except if such action is conditioned upon the consummation of the Merger Transactions. Any divestiture of Parent’s assets
shall not materially affect the value of the transaction.
(c) Cooperation.
In furtherance and not in limitation of the foregoing, the Company, Parent and Merger Sub shall (and shall cause their respective Subsidiaries
to), subject to any restrictions under applicable Laws, (i) promptly notify the other parties hereto of, and, if in writing, furnish,
to the extent permitted by Law or the relevant Governmental Authorities, the others with copies of (or, in the case of oral communications,
advise the others of the contents of) any material communication received by such Person from a Governmental Authority in connection with
the Merger Transactions and permit the other parties to review and discuss in advance (and to consider in good faith any comments made
by the other parties in relation to) any proposed draft notifications, formal notifications, filing, submission or other written communication
(and any analyses, memoranda, white papers, presentations, correspondence or other documents submitted therewith) made in connection with
the Merger Transactions to a Governmental Authority; (ii) keep the other parties reasonably informed with respect to the status of
any such submissions to any Governmental Authority in connection with the Merger Transactions and any developments, meetings or discussions
with any Governmental Authority in respect thereof, including with respect to (A) the receipt of any non-action, action, clearance,
consent, approval or waiver, (B) the commencement or proposed or threatened commencement of any investigation, litigation or administrative
or judicial action or proceeding under applicable Laws and (C) the nature and status of any objections raised or proposed or threatened
to be raised by any Governmental Authority with respect to the Merger Transactions; and (iii) not independently participate in any
meeting, hearing, proceeding or discussions (whether in person, by telephone or otherwise) with or before any Governmental Authority in
respect of the Merger Transactions without giving the other parties reasonable prior notice of such meeting or discussions and, unless
prohibited by such Governmental Authority, the opportunity to attend or participate. However, each of the Company, Parent and Merger Sub
may designate any non-public information provided to any Governmental Authority as restricted to “outside counsel” only and
any such information shall not be shared with employees, officers or directors or their equivalents of the other party without approval
of the party providing the non-public information; provided, however, that each of Company, Parent and Merger Sub may redact
any valuation and related information before sharing any information provided to any Governmental Authority with another Party on an “outside
counsel” only basis.
6.3 Proxy Statement
and Other Required SEC Filings.
(a) Proxy
Statement. As promptly as reasonably practicable following the date hereof, the Company will prepare and file with the SEC a preliminary
proxy statement (as amended or supplemented, the “Proxy Statement”) relating to the Company Stockholder Meeting. Subject
to Section 5.3, the Company must include the Company Board Recommendation in the Proxy Statement.
(b) Other
Required Company Filing. If the Company is required to file any document other than the Proxy Statement with the SEC in connection
with the Merger Transactions and this Agreement pursuant to applicable Law (such document, as amended or supplemented, an “Other
Required Company Filing”), then the Company will promptly prepare and file such Other Required Company Filing with the SEC.
The Company will use its reasonable best efforts to cause the Proxy Statement and any Other Required Company Filing to comply as to form
in all material respects with the applicable requirements of the Exchange Act and the rules of the SEC and Nasdaq. The Company may not
file the Proxy Statement or, except to the extent related to a Superior Proposal or Company Board Recommendation Change, any Other Required
Company Filing with the SEC without first providing Parent and its counsel a reasonable opportunity to review and comment thereon, and
the Company will give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent or its counsel.
On the date of filing, on the date of mailing to the Company Stockholders (if applicable) and at the time of the Company Stockholder Meeting,
neither the Proxy Statement nor any Other Required Company Filing will contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under
which they are made, not false or misleading. Notwithstanding the foregoing, no representation, warranty or covenant is made by the Company
with respect to any information supplied by Parent, Merger Sub or any of their Affiliates for inclusion or incorporation by reference
in the Proxy Statement or any Other Required Company Filing. The information supplied by the Company for inclusion or incorporation by
reference in any Other Required Parent Filings will not, at the time that such Other Required Parent Filing is filed with the SEC, contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are made, not false or misleading.
(c) Other
Required Parent Filing. If Parent or Merger Sub is required to file any document with the SEC in connection with the Merger Transactions
and this Agreement pursuant to applicable Law (an “Other Required Parent Filing”), then Parent and Merger Sub
will promptly prepare and file such Other Required Parent Filing with the SEC. Parent and Merger Sub will cause any Other Required Parent
Filing to comply as to form in all material respects with the applicable requirements of the Exchange Act and the rules of the SEC. Neither
Parent or Merger Sub may file any Other Required Parent Filing (or any amendment thereto) with the SEC without first providing the Company
and its counsel a reasonable opportunity to review and comment thereon, and Parent will give due consideration to all reasonable additions,
deletions or changes suggested thereto by the Company or its counsel. On the date of filing, on the date of mailing to the Company Stockholders
(if applicable) and at the time of the Company Stockholder Meeting, no Other Required Parent Filing may contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they are made, not false or misleading. Notwithstanding the foregoing, no representation, warranty
or covenant is made by Parent or Merger Sub with respect to any information supplied by the Company for inclusion or incorporation by
reference in any Other Required Parent Filing. The information supplied by Parent and Merger Sub for inclusion or incorporation by reference
in the Proxy Statement or any Other Required Company Filing will not, at the time that the Proxy Statement or such Other Required Company
Filing is filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not false or misleading.
(d) Furnishing
Information. Each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, will furnish all information concerning
it and its Affiliates, if applicable, as the other Party may reasonably request in connection with the preparation and filing with the
SEC of the Proxy Statement and any Other Required Company Filing or any Other Required Parent Filing. If at any time prior to the Company
Stockholder Meeting any information relating to the Company, Parent, Merger Sub or any of their respective Affiliates should be discovered
by the Company, on the one hand, or Parent or Merger Sub, on the other hand, that should be set forth in an amendment or supplement to
the Proxy Statement, any Other Required Company Filing or any Other Required Parent Filing, as the case may be, so that such filing would
not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not false or misleading, then the Party that discovers
such information will promptly notify the other, and an appropriate amendment or supplement to such filing describing such information
will be promptly prepared and filed with the SEC by the appropriate Party and, to the extent required by applicable Law or the SEC or
its staff, disseminated to the Company Stockholders.
(e) Consultation
Prior to Certain Communications. Except to the extent related to a Superior Proposal or Company Board Recommendation Change, the Company
and its Affiliates, on the one hand, and Parent, Merger Sub and their respective Affiliates, on the other hand, may not communicate in
writing with the SEC or its staff with respect to the Proxy Statement, any Other Required Company Filing or any Other Required Parent
Filing, as the case may be, without first providing the other Party a reasonable opportunity to review and comment on such written communication,
and each Party will give due consideration to all reasonable additions, deletions or changes suggested thereto by the other Parties or
their respective counsel.
(f) Notices.
The Company, on the one hand, and Parent and Merger Sub, on the other hand, will advise the other, promptly after it receives notice thereof,
of any receipt of a request by the SEC or its staff for (i) any amendment or revisions to the Proxy Statement, any Other Required Company
Filing or any Other Required Parent Filing, as the case may be; (ii) any receipt of comments from the SEC or its staff on the Proxy Statement,
any Other Required Company Filing or any Other Required Parent Filing, as the case may be; or (iii) any receipt of a request by the SEC
or its staff for additional information in connection therewith. The Company, on the one hand, and Parent and Merger Sub, on the other
hand, will provide a copy of all written correspondence (or, to the extent such correspondence is oral, a summary thereof) from the SEC
or its staff.
(g) Dissemination
of Proxy Statement. Subject to applicable Law, the Company will use its reasonable best efforts to cause the Proxy Statement to be
disseminated to the Company Stockholders as promptly as reasonably practicable following the filing thereof with the SEC and confirmation
from the SEC that it will not review, or that it has completed its review of, the Proxy Statement, which confirmation will be deemed to
have occurred if the SEC has not affirmatively notified the Company by 11:59 p.m., Eastern time, on the tenth calendar day following such
filing with the SEC that the SEC will or will not be reviewing the Proxy Statement. The Company will keep Parent reasonably informed regarding
all matters relating to the proxy solicitation process, including by promptly furnishing any voting or proxy solicitation reports received
by the Company.
6.4 Company
Stockholder Meeting.
(a) Call
of Company Stockholder Meeting. Subject to the provisions of this Agreement, the Company will take all action necessary in accordance
with the DGCL, the Charter, the Bylaws and the rules of Nasdaq to establish a record date for (and, except as required by law, the Company
will not change the record date without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned
or delayed)), duly call, give notice of, convene and hold a meeting of its stockholders (the “Company Stockholder Meeting”)
as promptly as reasonably practicable following the mailing of the Proxy Statement to the Company Stockholders for the purpose of obtaining
the Requisite Stockholder Approval, and the Company shall, in consultation with Parent, conduct a “broker search” in accordance
with Rule 14a-13 of the Exchange Act as soon as reasonably practicable after the date hereof to enable such record date to be set
for the Company Stockholder Meeting. Subject to Section 5.3 and unless there has been a Company Board Recommendation Change,
the Company will use its reasonable best efforts to solicit proxies to obtain the Requisite Stockholder Approval.
(b) Adjournment
of Company Stockholder Meeting. Notwithstanding anything to the contrary in this Agreement, nothing will prevent the Company from
postponing or adjourning the Company Stockholder Meeting, and at the request of Parent, the Company will postpone or adjourn, as applicable,
the Company Stockholder Meeting (i) to allow additional solicitation of votes in order to obtain the Requisite Stockholder Approval,
(ii) if there are holders of an insufficient shares of the Company Common Stock present or represented by proxy at the Company Stockholder
Meeting to constitute a quorum at the Company Stockholder Meeting provided that, in the case of the foregoing clauses (i)
or (ii), (x) such postponement or adjournment will not occur more than two times or be for more than ten Business Days each and (y) in
no event shall the record date of the Company Stockholder Meeting be changed, in each case, without the prior written consent of Parent
(such consent not to be unreasonably withheld, conditioned or delayed); (iii) if the Company is required to postpone or adjourn the
Company Stockholder Meeting by applicable Law or an order or a request from the SEC or its staff; or (iv) to the extent necessary
to ensure that any supplement or amendment to the Proxy Statement that is required by applicable Law or otherwise deemed advisable by
the Company Board upon the advice of counsel is provided to the Company Stockholders for the amount of time required by Law in advance
of the Company Stockholder Meeting; provided, that, in the case of the foregoing clause (iv), each such postponement or adjournment
shall not be for more than five Business Days. Unless this Agreement is validly terminated in accordance with Section 8.1,
the Company will submit this Agreement and the Merger to its stockholders at the Company Stockholder Meeting even if the Company Board
(or a committee thereof) has effected a Company Board Recommendation Change.
6.5 Cooperation
With Debt Financing.
(a) Cooperation
with Debt Financing. Prior to the Effective Time, the Company will use its commercially reasonable efforts, and will cause each of
its Subsidiaries to use its commercially reasonable efforts, and will use commercially reasonable efforts to cause their respective Representatives
to use their commercially reasonable efforts, to:
(i) provide
Parent and Merger Sub with such reasonable cooperation as may be reasonably requested by Parent or Merger Sub upon reasonable notice to
assist them in arranging and consummating the debt financing (if any) to be obtained by Parent or Merger Sub in connection with the Merger
(the “Debt Financing”);
(ii) participate
(and cause senior management and Representatives, with appropriate seniority and expertise, of the Company to participate), at reasonable
times and upon reasonable prior written notice, in a reasonable and limited number of meetings and presentations with actual or prospective
lenders, due diligence sessions, drafting sessions and sessions with rating agencies; and otherwise provide reasonable and customary cooperation
with the marketing and due diligence efforts for any Debt Financing; provided that any such meeting or presentation may be conducted
virtually by videoconference or other media;
(iii) provide
reasonable and customary assistance to Parent, Merger Sub and the Financing Sources with the timely preparation by Parent, Merger Sub
or the Financing Sources of customary (A) rating agency presentations, bank information memoranda, confidential information memoranda,
lender presentations and similar customary documents reasonably required in connection with the Debt Financing or customarily used to
arrange transactions similar to the Debt Financing by companies of a comparable size in a comparable industry as the Company; and (B) pro
forma financial statements and forecasts of financial statements of the Surviving Corporation for one or more periods following the Closing
Date, in each case, based on financial information and data derived from the Company’s historical books and records, in each case,
as may be reasonably requested by Parent and reasonably available and prepared by or for the Company Group in the ordinary course of business;
provided, however, that no member of the Company Group will be required to provide any information or assistance with respect
to the preparation of (x) pro forma financial statements or (y) forecasts of financing statements, in each case of clauses (x)
and (y), relating to (i) the determination of the proposed aggregate amount of the Debt Financing, the interest rates thereunder
or the fees and expenses relating thereto; (ii) the determination of any post-Closing or pro forma cost savings, synergies, capitalization,
ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing; or
(iii) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to
the acquisition of the Company by Parent;
(iv) furnish
Parent, Merger Sub and the Financing Sources, as promptly as practicable, with the Required Financial Statements;
(v) provide
reasonable and customary assistance to Parent and Merger Sub, in each case, upon reasonable request of Parent, in connection with the
execution and delivery (but in the case of execution and delivery, solely to the extent any such execution and delivery would only be
effective at or after the Effective Time and subject to the occurrence of the Closing Date) of reasonable and customary pledge and security
documents (including consents, landlord waivers and estoppels, non-disturbance agreements, non-invasive environmental assessments, non-imputation
affidavits, surveys and title insurance as reasonably requested by Parent or Merger Sub), mortgages, currency or interest hedging arrangements
and other definitive financing documents and certificates as may be reasonably requested by Parent or Merger Sub, facilitating the delivery
of insurance certificates and endorsements, and facilitating the delivery of all stock and other certificates representing equity interests
in the Company and its Subsidiaries to the extent required in connection with the Debt Financing, and otherwise reasonably facilitating
the pledging of collateral and the granting of security interests (and perfection thereof) in respect of the Debt Financing, it being
understood that, in each case, such documents will not take effect until the Effective Time and conditioned on the occurrence of the Closing,
and providing reasonable cooperation with Parent, upon request of Parent, to obtain customary and reasonable corporate and facilities
ratings;
(vi) upon
reasonable request of Parent, provide customary authorization letters to the Financing Sources authorizing the distribution of information
about the Company Group to prospective lenders or investors and containing a representation to the Financing Sources that the information
pertaining to the Company Group and based on financial information and data derived from the Company’s historical books and records
contained in the disclosure and marketing materials related to the Debt Financing and which was, in each case, provided by the Company,
is complete and correct in all material respects and that the public side versions of such documents, if any, do not include material
non-public information about the Company or its Subsidiaries; provided, however, that all such materials have been previously
identified to, and provided to, the Company with reasonable advance notice and that the Company has been given an opportunity to review
and comment on such materials and exclude any information that the Company believes to constitute material non-public information);
(vii) upon
reasonable request of Parent, facilitate and assist in the preparation, execution and delivery of one or more reasonable and customary
credit agreements, guarantees, certificates and other definitive financing documents as may be reasonably requested by Parent or Merger
Sub (including, furnishing all reasonable and customary information relating to the Company and its Subsidiaries and their respective
businesses to be included in any schedules thereto or in any perfection certificates as may be reasonably requested by Parent and reasonably
available and prepared by or for the Company Group in the ordinary course of business); provided that the foregoing documentation
shall be subject to the occurrence of the Closing Date and shall become effective no earlier than the Effective Time;
(viii) take
all corporate and other actions, subject to the occurrence of the Closing, reasonably requested by Parent or Merger Sub to permit the
consummation of the Debt Financing; provided that the Company Board shall not be required to approve or authorize the Debt Financing;
(ix) promptly
furnish (but in no event later than three Business Days prior to the Closing Date) Parent, Merger Sub and the Financing Sources with all
reasonable and customary documentation and other information about the Company Group as is reasonably requested by the Financing Sources
relating to applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act,
to the extent requested in writing at least ten (10) Business Days prior to the Closing Date; and
(x) upon
reasonable request by Parent, provide reasonable cooperation in satisfying the conditions precedent set forth in the definitive agreements
relating to the Debt Financing to the extent satisfaction thereof requires the cooperation, or is within the control, of the Company,
its Subsidiaries or their respective Representatives.
(b) Obligations
of the Company.
(i) Notwithstanding
anything in this Agreement to the contrary, the Company will not be required pursuant to this Section 6.5 or otherwise in
connection with the Debt Financing to (A) waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses
prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent;
(B) enter into any definitive agreement or distribute any cash (except to the extent subject to concurrent reimbursement by Parent)
that will be effective prior to the Closing Date; (C) give any indemnities in connection with the Debt Financing or any action required
to be taken by the Company Group pursuant to Section 6.5(a) (other than customary representation letters, authorization letters
and undertakings described in Section 6.5(a)(vi))) that are, in each case, effective prior to the Effective Time; (D) take
any action that, in the good faith determination of the Company, could reasonably be expected to unreasonably interfere with the conduct
of the business or operations of the Company Group or could reasonably be expected to create an unreasonable risk of damage or destruction
to any property or assets of the Company Group; or (E) take any action (including the disclosure of any information) that would reasonably
be expected to conflict with or violate its organizational documents or any applicable Laws or would reasonably be expected to result
in a violation or breach of, or default under, or create a right of termination or acceleration by any third Person party to any Contract
to which any member of the Company Group is a party (so long as such Contract is not entered into by the Company with the intent of availing
itself of the limitation set forth in this clause (E)).
(ii) Notwithstanding
anything in this Agreement to the contrary, (A) no action, liability or obligation of any member of the Company Group or any of their
respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing
or any of the actions required to be taken by the Company Group pursuant to Section 6.5(a) (other than customary representation
letters, authorization letters and undertakings described in Section 6.5(a)(vi)) will be effective until the Effective Time,
and neither the Company Group nor any of their respective Representatives will be required to take any action pursuant to any certificate,
agreement, arrangement, document or instrument (other than customary representation letters, authorization letters and undertakings described
in Section 6.5(a)(vi)) that is not contingent on the occurrence of the Closing or that must be effective prior to the Effective
Time and any such execution shall solely be required only to the extent that such Representative will be continuing in such capacity following
Closing; and (B) any bank information memoranda required in relation to the Debt Financing will contain disclosure reflecting the
Surviving Corporation or its Subsidiaries as the obligor.
(iii) Nothing
in this Section 6.5 will require (A) any officer or Representative of the Company Group to deliver any certificate or
opinion or take any other action under this Section 6.5 that could reasonably be expected to result in personal liability
to such officer or Representative; (B) the pre-Closing Company Board to approve any financing or Contracts or other documents related
thereto (other than, if applicable, approval of the execution of customary authorization letters described in Section 6.5(a)(vi)),
(C) the Company and/or its Subsidiaries to provide any information where access to such information would give rise to a material
risk of waiving any attorney-client privilege, work product doctrine, or other legal privilege applicable to such information, (D) any
member of the Company Group to deliver any solvency opinions or legal opinions in connection with the Debt Financing, (E) any member
of the Company Group or their respective Representatives to take any action that could reasonably be expected to result in personal liability
of any such Person, (F) any member of the Company Group or their respective Representatives to prepare or provide any Excluded Information
or (G) cooperation that causes any representation, warranty, covenant or other term in this Agreement to be breached or causes any
causes any closing condition to fail to be satisfied.
(iv) Notwithstanding
anything to the contrary in this Agreement, a breach or purported breach of the obligations of the Company or its Subsidiaries set forth
in Section 6.5 may not be asserted by Parent or Merger Sub as the basis for the termination of this Agreement pursuant to
Section 8.1(e) and shall not be considered in determining whether any condition to Closing set forth in this Agreement has
been satisfied, nor shall any such breach or purported breach entitle Parent or Merger Sub to damages under this Agreement.
(c) Use
of Logos. The Company hereby agrees to reasonably cooperate with the marketing efforts of Parent and the Financing Sources in connection
with the use of the Company and its Subsidiaries’ logos in connection with the Debt Financing so long as such logos (i) are
used solely in a manner that is not intended to or likely to harm or disparage the Company Group or the reputation or goodwill of the
Company Group; (ii) are used solely in connection with a description of the Company, its business and products or the Merger; and
(iii) are used in a manner consistent with the other terms and conditions that the Company reasonably imposes.
(d) Confidentiality.
All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Agreement will
be kept confidential in accordance with the Confidentiality Agreement and the Clean Team Agreement. Subject to the terms of the Confidentiality
Agreement, and without limiting the provisions or effect of the Confidentiality Agreement, Parent and Merger Sub will be permitted to
disclose such information to any Financing Sources or prospective Financing Sources and other financial institutions and investors that
may become parties to the Debt Financing (and, in each case, to their respective counsel and auditors) that, in the case of each of the
foregoing, have been approved by the Company in writing following the specific written request of Parent, so long as such Persons (i) agree
to be bound by the Confidentiality Agreement as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably
satisfactory to the Company and of which the Company is a beneficiary. The Parties acknowledge and agree that the provisions of the Confidentiality
Agreement, including the responsibility of the parties to the Confidentiality Agreement for their Representatives thereunder (as defined
therein), including any actual or potential financing sources, shall apply with respect to the provision of any information to any third
parties in connection with the Debt Financing.
(e) Reimbursement.
Promptly upon request by the Company, Parent will reimburse the Company for any documented and reasonable out-of-pocket costs and expenses
(including attorneys’ fees) incurred by the Company Group in connection with the cooperation of the Company Group contemplated by
this Section 6.5 (other than any costs and expenses with respect to any information that would be required to be produced
by any member the Company Group in the ordinary course of business independent of the obligations set forth in this Section 6.5,
including any costs and expenses in preparing the Required Financial Statements).
(f) Indemnification.
The Company Group and its Representatives will be indemnified and held harmless by Parent and from and against any and all liabilities,
losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in
settlement suffered or incurred by them in connection with any cooperation provided pursuant to this Section 6.5 or the provision
of information utilized in connection therewith other than any such amount resulting from their willful misconduct or gross negligence
as determined by a court of competent jurisdiction in a final judgement not subject to further appeal. Parent’s obligations pursuant
to Section 6.5(e) and this Section 6.5(f) referred to collectively as the “Reimbursement Obligations.”
The Reimbursement Obligations shall survive termination of this Agreement.
(g) No
Exclusive Arrangements. In no event will Parent, Merger Sub or any of their respective Affiliates (which for this purpose will be
deemed to include each direct investor in Parent or Merger Sub) enter into any Contract prohibiting or seeking to prohibit any bank, investment
bank or other potential provider of debt financing from providing or seeking to provide debt financing or financial advisory services
to any Person, in each case in connection with a transaction relating to the Company Group or in connection with the Merger Transactions.
(h) No
Financing Condition. Parent and Merger Sub each acknowledge and agree that obtaining the Debt Financing is not a condition to the
Closing. If the Debt Financing has not been obtained, Parent and Merger Sub will each continue to be obligated, subject to the satisfaction
or waiver of the conditions set forth in Article VII, to consummate the transactions contemplated hereby, including the Merger.
6.6
Anti-Takeover Laws. The Company and the Company Board (and any committee empowered to take such action, if applicable)
will (a) take all actions within their power to ensure that no “anti-takeover” statute or similar statute or regulation
is or becomes applicable to the Merger; and (b) if any “anti-takeover” statute or similar statute or regulation becomes
applicable to the Merger, take all action within their power to ensure that the Merger may be consummated as promptly as practicable on
the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger.
6.7
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company will
use its commercially reasonable efforts to afford Parent and its Representatives reasonable access during normal business hours, upon
reasonable advance written notice, to the properties, books and records and personnel of the Company to the extent reasonably requested
by Parent in furtherance of the potential consummation of the Merger Transactions, except that the Company may restrict or otherwise prohibit
access to any documents or information to the extent that (a) any applicable Law or regulation requires the Company to restrict or
otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material
risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access
to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give a third Person
the right terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any trade secrets
of third Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company
and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Nothing in this Section 6.7 will be
construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information.
Any investigation conducted pursuant to the access contemplated by this Section 6.7 will be conducted in a manner that does
not unreasonably interfere with the conduct of the business of the Company Group or create a risk of damage or destruction to any property
or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security
measures and insurance requirements and will not include the right to perform invasive testing. The terms and conditions of the Confidentiality
Agreement and the clean team agreement, dated June 6, 2024, between Parent and the Company (the “Clean Team Agreement”)
will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant
to the access contemplated by this Section 6.7. All requests for access pursuant to this Section 6.7 must be directed
to the General Counsel of the Company, or another person designated by the Company.
6.8 Section 16(b)
Exemption. Prior to the Effective Time, the Company and the Company Board (or a duly formed committee thereof consisting of
non-employee directors (as such term is defined for the purposes of Rule 16b-3 promulgated under the Exchange Act)) will take
all actions reasonably necessary or advisable to cause the Merger, and any dispositions of equity securities of the Company
(including derivative securities) in connection with the Merger by each individual who is a director or executive officer of the
Company to be exempt pursuant to Rule 16b-3 promulgated under the Exchange Act. Prior to taking the actions required by this Section 6.8,
the Company will provide Parent and its counsel copies of resolutions or other documentation with respect to such actions and the
Company shall give due consideration to all reasonable additions, deletions or changes thereto suggested by Parent or its
counsel.
6.9
Directors’ and Officers’ Exculpation, Indemnification and Insurance.
(a)
Indemnified Persons. The Surviving Corporation and its Subsidiaries will (and Parent will cause the Surviving Corporation
and its Subsidiaries to) honor and fulfill, in all respects, the obligations of the Company Group pursuant to any indemnification agreements
between a member of the Company Group and any of its current or former directors or officers (and any person who becomes a director or
officer of a member of the Company Group prior to the Effective Time) (collectively, the “Indemnified Persons”)
or employees for any acts or omissions by such Indemnified Persons or employees occurring prior to the Effective Time. In addition, during
the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Corporation and its
Subsidiaries will (and Parent will cause the Surviving Corporation and its Subsidiaries to) cause the certificates of incorporation, bylaws
and other similar organizational documents of the Surviving Corporation and its Subsidiaries to contain provisions with respect to indemnification,
exculpation and the advancement of expenses that are at least as favorable as the indemnification, exculpation and advancement of expenses
provisions set forth in the Charter, the Bylaws and the other similar organizational documents of the Subsidiaries of the Company, as
applicable, as of the date hereof. During such six-year period or such period in which an Indemnified Person is asserting a claim for
indemnification pursuant to Section 6.9(b), such provisions may not be repealed, amended or otherwise modified in any manner
except as required by applicable Law.
(b)
Indemnification Obligation.
(i) Without
limiting the generality of the provisions of Section 6.9(a), during the period commencing at the Effective Time and
ending on the sixth anniversary of the Effective Time, the Surviving Corporation will (and Parent will cause the Surviving
Corporation to) indemnify and hold harmless (and advance expenses), to the fullest extent permitted by applicable Law or pursuant to
any indemnification agreements with the Company and any of its Subsidiaries in effect on the date hereof, each Indemnified Person
from and against any costs, fees and expenses (including attorneys’ fees and investigation expenses), judgments, fines,
losses, claims, damages, liabilities and amounts paid in settlement or compromise in connection with any Legal Proceeding, whether
civil, criminal, administrative or investigative, to the extent that such Legal Proceeding arises, directly or indirectly, out of or
pertains, directly or indirectly, to (A) any action or omission, or alleged action or omission, in such Indemnified
Person’s capacity as a director, officer, employee or agent of the Company Group or its Affiliates to the extent that such
action or omission, or alleged action or omission, occurred prior to or at the Effective Time; and (B) the Merger Transactions,
as well as any actions taken by the Company, Parent or Merger Sub with respect thereto (including any disposition of assets of the
Surviving Corporation or any of its Subsidiaries that is alleged to have rendered the Surviving Corporation or any of its
Subsidiaries insolvent), except that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Person
delivers to Parent a written notice asserting a claim for indemnification pursuant to this Section 6.9(b), then the
claim asserted in such notice will survive the sixth anniversary of the Effective Time until such claim is fully and finally
resolved.
(ii)
In the event of any such Legal Proceeding, (A) the Surviving Corporation will have the right to control the defense thereof
after the Effective Time (it being understood that, by electing to control the defense thereof, the Surviving Corporation will be deemed
to have waived any right to object to the Indemnified Person’s entitlement to indemnification hereunder with respect thereto); (B) each
Indemnified Person will be entitled to retain his or her own counsel, whether or not the Surviving Corporation elects to control the defense
of any such Legal Proceeding; (C) the Surviving Corporation will advance all fees and expenses (including fees and expenses of any
counsel) as incurred by an Indemnified Person in the defense of such Legal Proceeding, whether or not the Surviving Corporation elects
to control the defense of any such Legal Proceeding; and (D) no Indemnified Person will be liable for any settlement of such Legal
Proceeding effected without his or her prior written consent (unless such settlement relates only to monetary damages for which the Surviving
Corporation is entirely responsible).
(iii)
Notwithstanding anything to the contrary in this Agreement, none of Parent, the Surviving Corporation nor any of their respective
Affiliates will settle or otherwise compromise or consent to the entry of any judgment with respect to, or otherwise seek the termination
of, any Legal Proceeding for which indemnification may be sought by an Indemnified Person pursuant to this Agreement unless such settlement,
compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such
Legal Proceeding. No Indemnified Person will be liable for any settlement, compromise, consent or termination effected in contravention
of the foregoing sentence. Any determination required to be made with respect to whether the conduct of any Indemnified Person complies
or complied with any applicable standard will be made by independent legal counsel selected by the Surviving Corporation (which counsel
will be reasonably acceptable to such Indemnified Person), the fees and expenses of which will be paid by the Surviving Corporation.
(c)
D&O Insurance. During the period commencing at the Effective Time and ending on the sixth anniversary of the Effective
Time, the Surviving Corporation will (and Parent will cause the Surviving Corporation to) maintain in effect the Company’s current
directors’ and officers’ liability insurance (“D&O Insurance”) in respect of acts or omissions occurring
at or prior to the Effective Time on terms (including with respect to coverage, conditions, retentions, limits and amounts) that are
equivalent to those of the D&O Insurance. In satisfying its obligations pursuant to this Section 6.9(c), the Surviving
Corporation will not be obligated to pay annual premiums in excess of 300% of the amount paid by the Company for coverage for its last
full fiscal year (such 300% amount, the “Maximum Annual Premium”). If the annual premiums of such insurance coverage
exceed the Maximum Annual Premium, then the Surviving Corporation will be obligated to obtain a policy with the greatest coverage available
for a cost not exceeding the Maximum Annual Premium from an insurance carrier with the same or better credit rating as the Company’s
current directors’ and officers’ liability insurance carrier. Prior to the Effective Time, and in lieu of maintaining the
D&O Insurance pursuant to this Section 6.9(c), the Company may purchase a prepaid “tail” policy with respect
to the D&O Insurance from an insurance carrier with the same or better credit rating as the Company’s current directors’
and officers’ liability insurance carrier so long as the annual cost for such “tail” policy does not exceed the Maximum
Annual Premium. If the Company elects to purchase such a “tail” policy prior to the Effective Time, the Surviving Corporation
will (and Parent will cause the Surviving Corporation to) maintain such “tail” policy in full force and effect and continue
to honor its obligations thereunder for so long as such “tail” policy is in full force and effect.
(d)
Successors and Assigns. If Parent, the Surviving Corporation or any of their respective successors or assigns will (i) consolidate
with or merge into any other Person and not be the continuing or surviving corporation or entity in such consolidation or merger; or (ii)
transfer all or substantially all of its properties and assets to any Person, then proper provisions will be made so that the successors
and assigns of Parent, the Surviving Corporation or any of their respective successors or assigns will assume all of the obligations of
Parent and the Surviving Corporation set forth in this Section 6.9.
(e)
No Impairment. The obligations set forth in this Section 6.9 may not be terminated, amended or otherwise modified
in any manner that adversely affects any Indemnified Person (or any other person who is a beneficiary pursuant to the D&O Insurance
or the “tail” policy referred to in Section 6.9(c) (and their heirs and representatives)) without the prior written
consent of such affected Indemnified Person or other person. Each of the Indemnified Persons or other persons who are beneficiaries pursuant
to the D&O Insurance or the “tail” policy referred to in Section 6.9(c) (and their heirs and representatives)
are intended to be third party beneficiaries of this Section 6.9, with full rights of enforcement as if such person were a
Party. The rights of the Indemnified Persons (and other persons who are beneficiaries pursuant to the D&O Insurance or the “tail”
policy referred to in Section 6.9(c) (and their heirs and representatives)) pursuant to this Section 6.9 will
be in addition to, and not in substitution for, any other rights that such persons may have pursuant to (i) the Charter and Bylaws; (ii)
the similar organizational documents of the Subsidiaries of the Company; (iii) any and all indemnification agreements entered into with
the Company Group; or (iv) applicable Law (whether at law or in equity).
(f)
Joint and Several Obligations. The obligations of the Surviving Corporation, Parent and their respective Subsidiaries pursuant
to this Section 6.9 will be joint and several.
(g)
Other Claims. Nothing in this Agreement is intended to, or will be construed to, release, waive or impair any rights to
directors’ and officers’ insurance claims pursuant to any applicable insurance policy or indemnification agreement that is
or has been in existence with respect to the Company Group for any of its directors, officers or other employees, it being understood
and agreed that the indemnification provided for in this Section 6.9 is not prior to or in substitution for any such claims
pursuant to such policies or agreements.
6.10
Employee Matters.
(a) Employment;
Benefits. For a period of one year following the Effective Time (or, if earlier, the date of termination of an applicable
Continuing Employee) (the “Continuation Period”), the Surviving Corporation and its Subsidiaries will
provide to each Continuing Employee (i) a base salary or base wage rate and target annual cash incentive and bonus
opportunities, as applicable, that are no less favorable in the aggregate than those provided to each Continuing Employee
immediately prior to the Effective Time; and (ii) employee benefits (excluding nonqualified deferred compensation, bonus,
incentive, equity or equity-based, severance, change in control, transaction or retention compensation or arrangements or defined
benefit pension and post-employment or retiree health or welfare benefits (collectively, the “Excluded
Benefits”)) that are substantially comparable in the aggregate to either, at Parent’s discretion, (A) those
provided to each Continuing Employee immediately prior to the Effective Time under the Employee Plans set forth on Section 3.16(a)
of the Company Disclosure Letter, and (B) those provided to similarly situated employees of Parent or (C) some combination
of (A) and (B), in each case, excluding the Excluded Benefits. With respect to any Continuing Employee whose employment is
involuntarily terminated by the Surviving Corporation without “cause” (and not due to the Continuing Employee’s
death or disability) during the Continuation Period, the Surviving Corporation will (and Parent will cause the Surviving Corporation
to) provide severance benefits that are no less favorable than the severance benefits to which such Continuing Employee would have
been entitled to receive upon such termination pursuant to the terms of the Employee Plan set forth on Section 6.10(a)
of the Company Disclosure Letter, as in effect on the date hereof.
(b)
New Plans. Following the Effective Time, the Surviving Corporation and its Subsidiaries will (and Parent will cause the
Surviving Corporation and its Subsidiaries to) cause to be granted to each Continuing Employee credit for service with the Company Group
prior to the Effective Time under the employee benefit plans of the Surviving Corporation and its Subsidiaries in which such Continuing
Employee participates following the Effective Time (the “New Plans”) for purposes of eligibility to participate,
vesting and entitlement to benefits solely for purposes of vacation accrual and severance pay entitlement to the same extent and for the
same purpose as such service was credited under the analogous Employee Plan in which such Continuing Employee participated immediately
prior to the Effective time, except that such service need not be credited to the extent that it would result in duplication of compensation,
coverage or benefits for the same period of service and shall not apply for any purpose under any Excluded Benefit. In addition, and without
limiting the generality of the foregoing, for the plan year in which the Effective Time occurs, the Surviving Corporation and its Subsidiaries
shall use commercially reasonable efforts to cause: (i) each Continuing Employee to be immediately eligible to participate, without
any waiting period, in any and all New Plans to the extent that coverage pursuant to any such New Plan replaces coverage pursuant to a
comparable Employee Plan in which such Continuing Employee participated immediately before the Effective Time (such plans, the “Old
Plans”); (ii) for purposes of each New Plan providing medical, dental, pharmaceutical or vision benefits to any Continuing
Employee, all waiting periods, pre-existing condition exclusions, evidence of insurability requirements and actively-at-work or similar
requirements of such New Plan to be waived for such Continuing Employee and his or her covered dependents to the same extent waived or
satisfied under the analogous Old Plan in which such Continuing Employee participated immediately prior to the Effective Time, and (iii) any
eligible expenses paid by such Continuing Employee and his or her covered dependents under any Old Plan that is a group health plan for
the plan year in which the Effective Time occurs to be given full credit under the applicable New Plan that is a group health plan for
purposes of satisfying the corresponding deductible, coinsurance, co-pay, offsets and maximum out-of-pocket requirements applicable to
such Continuing Employee and his or her covered dependents as if such amounts had been paid in accordance with such New Plan.
(c)
At the written request of Parent provided no later than ten (10) Business Days prior to the Closing Date, the applicable
member of the Company Group shall, at least one day prior to the Closing Date, adopt written resolutions (the form of which shall have
been approved by Parent, whose approval shall not be unreasonably withheld) to terminate any Employee Plan that is intended to be qualified
under Section 401(a) of the Code (the “Company 401(k) Plan”) and to fully vest all participants under the
Company 401(k) Plan, such termination and vesting to be effective no later than the day preceding the Closing Date. Parent shall
allow eligible rollover contributions to the Parent 401(k) Plan of account balances under the Company 401(k) Plan.
(d)
No Third-Party Beneficiary Rights. Notwithstanding anything to the contrary set forth in this Agreement, this Section
6.10 will not be deemed to (i) guarantee employment for any period of time for, or preclude the ability of Parent, the Surviving
Corporation or any of their respective Subsidiaries to terminate any Continuing Employee for any reason; (ii) subject to the limitations
and requirements specifically set forth in this Section 6.10, require Parent, the Surviving Corporation or any of their respective
Subsidiaries to continue any Employee Plan, New Plan or any other benefit or compensation, plan, program, policy, agreement or arrangement
or prevent the amendment, modification or termination thereof after the Effective Time; (iii) create any third-party beneficiary
rights in any Person; or (iv) establish, amend or modify any Employee Plan or any other benefit or compensation plan, program, policy,
agreement or arrangement.
6.11
Obligations of Merger Sub. Parent will take all action necessary to cause Merger Sub and the Surviving Corporation to
perform their respective obligations pursuant to this Agreement and to consummate the Merger Transactions upon the terms and subject to
the conditions set forth in this Agreement. Parent and Merger Sub will be jointly and severally liable for the failure by either of them
to perform and discharge any of their respective covenants, agreements and obligations pursuant to this Agreement.
6.12
Notification of Certain Matters.
(a)
Notification by the Company. At all times during the period commencing with the execution and delivery of this Agreement
and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective
Time, the Company will give prompt notice to Parent upon becoming aware that any representation or warranty made by it in this Agreement
has become untrue or inaccurate in any material respect, or of any failure by the Company to comply with or satisfy in any material respect
any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement, in each case if and only to the
extent that such untruth, inaccuracy, or failure would reasonably be expected to cause any of the conditions to the obligations of Parent
and Merger Sub to consummate the Merger Transactions set forth in Section 7.2(a) or Section 7.2(b) to fail to
be satisfied at the Closing, except that no such notification will affect or be deemed to modify any representation or warranty of the
Company set forth in this Agreement or the conditions to the obligations of Parent and Merger Sub to consummate the Merger Transactions
or the remedies available to the Parties under this Agreement. The terms and conditions of the Confidentiality Agreement apply to any
information provided to Parent pursuant to this Section 6.12(a).
(b)
Notification by Parent. At all times during the period commencing with the execution and delivery of this Agreement and
continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time,
Parent will give prompt notice to the Company upon becoming aware that any representation or warranty made by Parent or Merger Sub in
this Agreement has become untrue or inaccurate in any material respect, or of any failure by Parent or Merger Sub to comply with or satisfy
in any material respect any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement, in each
case if and only to the extent that such untruth, inaccuracy or failure would reasonably be expected to cause any of the conditions to
the obligations of the Company to consummate the Merger Transactions set forth in Section 7.3(a) or Section 7.3(b)
to fail to be satisfied at the Closing, except that no such notification will affect or be deemed to modify any representation or warranty
of Parent or Merger Sub set forth in this Agreement or the conditions to the obligations of the Company to consummate the Merger Transactions
or the remedies available to the Parties under this Agreement. The terms and conditions of the Confidentiality Agreement apply to any
information provided to the Company pursuant to this Section 6.12(b).
(c)
Impact of Non-Compliance. The Company’s or Parent’s failure to comply with this Section 6.12 will
not be taken into account for purposes of determining whether any conditions to the Merger Transactions set forth in Article VII
have been satisfied.
6.13
Public Statements and Disclosure. The initial press release concerning this Agreement and the Merger, of the Company,
on the one hand, and Parent and Merger Sub, on the other hand, will each be reasonably acceptable to the other Party. Thereafter, the
Company and its Affiliates (other than with respect to the portion of any communication relating to a Company Board Recommendation Change),
on the one hand, and Parent and Merger Sub and their Affiliates (other than with respect to the portion of any communication relating
to a Company Board Recommendation Change), on the other hand, will obtain other Party’s consent (which consent shall not be unreasonably
withheld, conditioned or delayed) before (a) participating in any media interviews; (b) engaging in any meetings or calls with
analysts, institutional investors or other similar Persons; or (c) providing any statements that are public or are reasonably likely
to become public, in any such case to the extent relating to the Merger Transactions, except with respect to communications that are (w) required
by applicable Law, regulation or stock exchange rule or listing agreement; (x) principally directed to employees, suppliers, customers,
partners or vendors so long as such communications are consistent with the previous press releases, public disclosures or public statements
made jointly by the Parties (or individually if approved by the other Party); (y) principally directed to any existing or prospective
general or limited partners, equity holders, members and investors of Parent or its Affiliates, so long as such communications are consistent
with prior communications previously agreed to by Parent and the Company and do not add additional material information not included in
such previous communication (z) solely to the extent related to a Superior Proposal or Company Board Recommendation Change.
6.14 Transaction
Litigation. Prior to the Effective Time, the Company will provide Parent with prompt notice of all Transaction Litigation
(including by providing copies of all pleadings with respect thereto) and keep Parent reasonably informed with respect to the status
thereof. The Company will (a) give Parent the opportunity to participate in the defense, settlement or prosecution of any
Transaction Litigation; and (b) consult with Parent with respect to the defense, settlement and prosecution of any Transaction
Litigation. The Company may not compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an
arrangement regarding, any Transaction Litigation unless Parent has consented thereto in writing (which consent will not be
unreasonably withheld, conditioned or delayed).
6.15
Stock Exchange Delisting; Deregistration. Prior to the Effective Time, the Company will cooperate with Parent and use
its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper
or advisable on its part pursuant to applicable Law and the rules and regulations of Nasdaq to cause (and refrain from doing any things
or taking any actions in contravention of applicable SEC and Nasdaq requirements to cause) (a) the delisting of the Company Common
Stock from Nasdaq as promptly as practicable after the Effective Time; (b) the deregistration of the Company Common Stock pursuant
to the Exchange Act as promptly as practicable after such delisting; and (c) the suspension of the Company’s duty to file reports
under Sections 13 and 15(d) of the Exchange Act as promptly as practicable thereafter. In furtherance of the foregoing, the Company
shall file all forms, reports, statements, schedules, certifications and other documents with the SEC that it is required to furnish or
file pursuant to applicable Law.
6.16
Additional Agreements. If at any time after the Effective Time any further action is necessary or desirable to carry
out the purposes of this Agreement or to vest the Surviving Corporation with full title to all properties, assets, rights, approvals,
immunities and franchises of either of the Company or Merger Sub, then the proper officers and directors of each Party will use their
reasonable best efforts to take such action.
6.17
Parent Vote. Immediately following the execution and delivery of this Agreement, Parent, in its capacity as the sole
stockholder of Merger Sub, will execute and deliver to Merger Sub and the Company a written consent approving the Merger Transactions
in accordance with applicable Law and its organizational documents.
6.18
No Control of the Other Party’s Business. The Parties acknowledge and agree that the restrictions set forth in
this Agreement are not intended to give Parent or Merger Sub, on the one hand, or the Company, on the other hand, directly or indirectly,
the right to control or direct the business or operations of the other at any time prior to the Effective Time. Prior to the Effective
Time, each of Parent and the Company will exercise, consistent with the terms, conditions and restrictions of this Agreement, complete
control and supervision over their own business and operations.
6.19 No
Stockholder or Employment Discussions. Except as approved by the Company Board, at all times during the period commencing
with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time, Parent and Merger Sub will not, and will not permit any of their
Subsidiaries or Affiliates to, directly or indirectly, authorize, make or enter into, or commit or agree to enter into, any Contract
with any party known by Parent or Merger Sub (or their respective Affiliates) to be a beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of any outstanding Company Capital Stock or any director, officer or employee of the Company
or any of its Affiliates (a) regarding any continuing employment or consulting relationship with the Surviving Corporation from
and after the Effective Time; or (b) pursuant to which any such Person (i) would roll over any of their shares of Company
Common Stock or other equity interests in the Company into equity interests in Parent or Merger Sub or any other entity or be
entitled to receive consideration of a different amount or nature or other differential consideration than the consideration to
which such Person is entitled pursuant to Article II, (ii) would agree to approve this Agreement or vote against
any Superior Proposal or (iii) other than as set forth on Schedule 6.19, would agree to provide, directly or indirectly,
equity investment to Parent or Merger Sub to finance any portion of the Merger Transactions.
6.20
Payoff Letter. The Company shall: (a) obtain a Payoff Letter, specifying the Payoff Amount, and lien terminations
to the extent necessary for the release of all Liens related to, and the payoff, discharge and termination in full of, all obligations
outstanding under the Company Loan and Security Agreement; and (b) at least three (3) Business Days prior to the Closing Date,
deliver to Parent (i) a copy of such fully executed Payoff Letter and (ii) customary documentation evidencing the release of
all Liens with respect to the Company Loan and Security Agreement (including any customary termination statements on Form UCC-3 or
other customary releases).
Article VII
CONDITIONS TO THE MERGER
7.1
Conditions to Each Party’s Obligations to Effect the Merger. The respective obligations of Parent, Merger Sub
and the Company to consummate the Merger are subject to the satisfaction or waiver (where permissible pursuant to applicable Law) at or
prior to the Effective Time of each of the following conditions:
(a)
Requisite Stockholder Approval. The Company shall have received the Requisite Stockholder Approval at the Company Stockholder
Meeting.
(b)
Antitrust Laws. No voluntary agreement with the Federal Trade Commission, Department of Justice or other Governmental Authority
not to consummate the Merger Transactions for any period of time shall be in effect.
(c)
No Prohibitive Laws or Injunctions. No temporary restraining order, preliminary or permanent injunction or other judgment
or order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation
of the Merger shall be in effect, nor shall any action have been taken by any Governmental Authority of competent jurisdiction, and no
statute, rule, regulation or order shall have been enacted, entered, enforced or deemed applicable to the Merger by any Governmental Authority
of competent jurisdiction, that in each case prohibits or enjoins the consummation of the Merger.
7.2
Conditions to the Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub
to consummate the Merger are subject to the satisfaction or waiver (where permissible pursuant to applicable Law) at or prior to the Effective
Time of each of the following conditions, any of which may be waived exclusively by Parent:
(a)
Representations and Warranties.
(i)
Other than the representations and warranties listed in Section 7.2(a)(ii) and Section 7.2(a)(iii), the
representations and warranties of the Company set forth in Article III shall will be true and correct (without giving effect
to any materiality or Company Material Adverse Effect qualifications set forth therein) as of the Closing Date as if made at and as of
the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case
such representation and warranty shall be true and correct as of such earlier date), except for such failures to be true and correct
that would not have a Company Material Adverse Effect.
(ii)
The representations and warranties set forth in Section 3.1 (Organization; Good Standing), Section 3.3
(Corporate Power; Enforceability), Section 3.4 (Company Board Approval; Fairness Opinion; Anti-Takeover Laws),
Section 3.5 (Requisite Stockholder Approval), Section 3.6(a) (Non-Contravention), and Section 3.19
(Brokers) that (A) are not qualified by Company Material Adverse Effect or other materiality qualifications shall be true and correct
in all material respects as of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation
and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material
respects as of such earlier date); and (B) that are qualified by Company Material Adverse Effect or other materiality qualifications shall
be true and correct in all respects (without disregarding such Company Material Adverse Effect or other materiality qualifications) as
of the Closing Date as if made at and as of the Closing Date (except to the extent that any such representation and warranty expressly
speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier
date).
(iii)
The representations and warranties set forth in Section 3.8(a) (Capital Stock) and in the second sentence of
Section 3.8(b) (Stock Reservation), shall be true and correct in all respects as of the Closing Date (in each case
(A) without giving effect to any Company Material Adverse Effect or other materiality qualifications; and (B) except to the
extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty
shall be true and correct as of such earlier date), except where the failure to be so true and correct in all respects would not reasonably
be expected to result in additional cost, expense or liability to the Company or Parent, individually or in the aggregate, that is more
than $3,750,000.
(iv)
The representation and warranty set forth in the last sentence of Section 3.26 (Absence of Certain Changes)
shall be true and correct in all respects.
(b)
Performance of Obligations of the Company. The Company shall have performed and complied in all material respects with all
covenants and obligations of this Agreement required to be performed and complied with by it at or prior to the Closing.
(c)
Officer’s Certificate. Parent and Merger Sub shall have received a certificate of the Company, validly executed for
and on behalf of the Company and in its name by a duly authorized executive officer thereof, certifying that the conditions set forth
in Section 7.2(a) and Section 7.2(b) have been satisfied.
(d)
Payoff Amount Payment. At or immediately following the Closing, the Company shall pay the Payoff Amount specified in the
Payoff Letter with respect to the Company Loan and Security Agreement.
(e)
FIRPTA Certificate. Parent and Merger Sub shall have received an affidavit, dated as of the Closing Date and executed by
the Company under penalties of perjury, stating that the Company has not been a “United States real property holding corporation”
(within the meaning of Section 897(c) of the Code and the Treasury Regulations promulgated thereunder) at any time during the five-year
period ending on the Closing Date, together with a draft notice, prepared in accordance with Treasury Regulation Section 1.897-2(h)(2),
to be mailed promptly (together with copies of such affidavit) to the IRS in accordance with Treasury Regulation Section 1.897-2(h)(2),
in the form attached hereto as Exhibit A.
(f) Company Material Adverse
Effect. No Company Material Adverse Effect shall have occurred after the date hereof that is continuing.
(g) Company Disclosure
Letter. The conditions specified in Section 7.2(g) of the Company Disclosure Letter shall have been satisfied.
7.3
Conditions to the Company’s Obligations to Effect the Merger. The obligations of the Company to consummate the
Merger are subject to the satisfaction or waiver (where permissible pursuant to applicable Law) at or prior to the Effective Time of each
of the following conditions, any of which may be waived exclusively by the Company:
(a)
Representations and Warranties. The representations and warranties of Parent and Merger Sub set forth in Article IV
will be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date, except for (i) any
failure to be so true and correct that would not, individually or in the aggregate, prevent or materially delay the consummation of the
Merger or the ability of Parent and Merger Sub to fully perform their respective covenants and obligations pursuant to this Agreement;
and (ii) those representations and warranties that address matters only as of a particular date, which representations will have
been true and correct as of such particular date, except for any failure to be so true and correct that would not, individually or in
the aggregate, prevent or materially delay the consummation of the Merger or the ability of Parent and Merger Sub to fully perform their
respective covenants and obligations pursuant to this Agreement.
(b)
Performance of Obligations of Parent and Merger Sub. Parent and Merger Sub shall have performed and complied in all material
respects with all covenants and obligations of this Agreement required to be performed and complied with by Parent and Merger Sub at or
prior to the Closing.
(c)
Officer’s Certificate. The Company shall have received a certificate of Parent and Merger Sub, validly executed for
and on behalf of Parent and Merger Sub and in their respective names by a duly authorized officer thereof, certifying that the conditions
set forth in Section 7.3(a) and Section 7.3(b) have been satisfied.
Article VIII
TERMINATION, AMENDMENT AND WAIVER
8.1
Termination. This Agreement may be validly terminated, and the Merger Transactions may be abandoned, only as follows
(it being understood and agreed that this Agreement may not be terminated for any other reason or on any other basis):
(a)
at any time prior to the Effective Time (whether prior to or after the receipt of the Requisite Stockholder Approval) by mutual
written agreement of Parent and the Company;
(b)
by either Parent or the Company, at any time prior to the Effective Time (whether prior to or after the receipt of the Requisite
Stockholder Approval) if (i) any permanent injunction or other judgment or order issued by any court of competent jurisdiction or
other legal or regulatory restraint or prohibition preventing the consummation of the Merger will be in effect, or any action has been
taken by any Governmental Authority of competent jurisdiction, that, in each case, prohibits or enjoins the consummation of the Merger
and has become final and non-appealable; or (ii) any statute, rule, regulation or order will have been enacted, entered, enforced
or deemed applicable to the Merger by any Governmental Authority of competent jurisdiction that prohibits or enjoins the consummation
of the Merger, except that the right to terminate this Agreement pursuant to this Section 8.1(b) will not be available to
any Party that has failed to perform its obligations under this Agreement in any material respect, including Section 6.2,
or whose action or failure to act (which action or failure to act constitutes a breach by such Party of this Agreement) has been the primary
cause of, or primarily resulted in the issuance, promulgation, enforcement or entry of any such judgment, order or law;
(c)
by either Parent or the Company, at any time prior to the Effective Time (whether prior to or after the receipt of the Requisite
Stockholder Approval) if the Effective Time has not occurred by 11:59 p.m., Eastern Time, on January 21, 2025 (the “Termination
Date”), it being understood that the right to terminate this Agreement pursuant to this Section 8.1(c) will not
be available to (i)(A) Parent if the Company has the valid right to terminate this Agreement pursuant to Section 8.1(h);
or (B) the Company if Parent has the valid right to terminate this Agreement pursuant to Section 8.1(e); and (ii) any
Party whose action or failure to act (which action or failure to act constitutes a breach by such Party of this Agreement) has been the
primary cause of, or primarily resulted in, either (A) the failure to satisfy the conditions to the obligations of the terminating
Party to consummate the Merger set forth in Article VII prior to the Termination Date; or (B) the failure of the Effective
Time to have occurred prior to the Termination Date;
(d)
by either Parent or the Company, at any time prior to the Effective Time if the Company fails to obtain the Requisite Stockholder
Approval at the Company Stockholder Meeting (or any adjournment or postponement thereof) at which a vote is taken on the Merger, except
that the right to terminate this Agreement pursuant to this Section 8.1(d) will not be available to any Party whose action
or failure to act (which action or failure to act constitutes a breach by such Party of this Agreement) has been the cause of, or resulted
in, the failure to obtain the Requisite Stockholder Approval at the Company Stockholder Meeting (or any adjournment or postponement thereof);
(e)
by Parent (whether prior to or after the receipt of the Requisite Stockholder Approval), if the Company has breached or failed
to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement,
which breach or failure to perform would result in a failure of a condition set forth in Section 7.1 or Section 7.2,
except that if such breach is capable of being cured by the Termination Date, Parent will not be entitled to terminate this Agreement
pursuant to this Section 8.1(e) prior to the delivery by Parent to the Company of written notice of such breach, delivered
at least 45 days prior to such termination, stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(e)
and the basis for such termination, it being understood that (i) Parent will not be entitled to terminate this Agreement if such
breach has been cured prior to termination (to the extent capable of being cured) and (ii) Parent will not be entitled to terminate
this Agreement pursuant to this Section 8.1(e) if, at the time that such termination would otherwise take effect in accordance
with the foregoing, Parent or Merger Sub has breached or failed to perform in any material respect any of its respective representations,
warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform would result in a failure of
a condition set forth in Section 7.1 or Section 7.3;
(f)
by Parent, if at any time the Company Board (or a committee thereof) has effected a Company Board Recommendation Change, except
that Parent’s right to terminate this Agreement pursuant to this Section 8.1(f) will expire at 5:00 p.m. (Pacific
Time) on the tenth (10th) Business Day following the date on which such right to terminate first arose;
(g)
by Parent, if the Company Group or any of its directors or officers, or any of its financial advisors or attorneys engaged by the
Company Group in connection with the Merger Transactions (or any Person acting at the Company Group’s instruction), materially breach
Section 5.3;
(h)
by the Company (whether prior to or after the receipt of the Requisite Stockholder Approval), if Parent or Merger Sub has breached
or failed to perform in any material respect any of its respective representations, warranties, covenants or other agreements contained
in this Agreement, which breach or failure to perform would result in a failure of a condition set forth in Section 7.1 or
Section 7.3, except that if such breach is capable of being cured by the Termination Date, the Company will not be entitled
to terminate this Agreement pursuant to this Section 8.1(h) prior to the delivery by the Company to Parent of written notice
of such breach, delivered at least 45 days prior to such termination, stating the Company’s intention to terminate this Agreement
pursuant to this Section 8.1(h) and the basis for such termination, it being understood that (i) the Company will not
be entitled to terminate this Agreement if such breach has been cured prior to termination (to the extent capable of being cured) and
(ii) the Company will not be entitled to terminate this Agreement pursuant to this Section 8.1(h) if, at the time that
such termination would otherwise take effect in accordance with the foregoing, the Company has breached or failed to perform in any material
respect any of its respective representations, warranties, covenants or other agreements contained in this Agreement, which breach or
failure to perform would result in a failure of a condition set forth in Section 7.1 or Section 7.2;
(i)
by the Company, at any time prior to receiving the Requisite Stockholder Approval if (i) the Company has received a Superior
Proposal; (ii) the Company Board (or a committee thereof) has authorized the Company to enter into a definitive Alternative Acquisition
Agreement providing for the consummation of the Acquisition Transaction contemplated by that Superior Proposal; (iii) the Company
has complied in all material respects with Section 5.3 with respect to such Superior Proposal; and (iv) concurrently
with such termination the Company pays the Company Termination Fee due to Parent in accordance with Section 8.3(b);
8.2
Manner and Notice of Termination; Effect of Termination.
(a)
Manner of Termination. The Party terminating this Agreement pursuant to Section 8.1 (other than pursuant to
Section 8.1(a)) must deliver prompt written notice thereof to the other Parties setting forth in reasonable detail the provision
of Section 8.1 pursuant to which this Agreement is being terminated and the facts and circumstances forming the basis for
such termination pursuant to such provision.
(b)
Effect of Termination.
(i)
Any proper and valid termination of this Agreement pursuant to Section 8.1 will be effective immediately upon the delivery
of written notice by the terminating Party to the other Parties.
(ii)
In the event of the termination of this Agreement pursuant to Section 8.1, this Agreement will be of no further force
or effect without liability of any Party (or any partner, member, manager, stockholder, director, officer, employee, Affiliate, agent
or other Representative of such Party) to the other Parties, as applicable, except that Section 6.5(d) (Confidentiality),
Section 6.5(e) (Reimbursement), Section 6.5(f) (Indemnification), Section 6.13 (Public
Statements and Disclosure), this Section 8.2, Section 8.3 and Article IX will each survive the
termination of this Agreement in accordance with their respective terms. Notwithstanding the foregoing but subject to Section 8.3(e)
(Sole and Exclusive Remedy), including the Parent Liability Limitation and the Company Liability Limitation, nothing in this Agreement
will relieve any Party from any liability for any willful and material breach of this Agreement, which liability or damages the Parties
acknowledge and agree shall not be limited to reimbursement of out-of-pocket fees, costs or expenses incurred in connection with the Merger
Transactions, and that the Company shall also have the right to seek monetary damages in respect of holders of shares of Company Common
Stock or other equity interests in the Company (including monetary damages based on loss of premium, decrease in share value or loss of
the economic benefit of the Merger Transactions).
(iii)
For the avoidance of doubt, in the event of termination of this Agreement, the Financing Sources will have no liability to the
Company, any of its Affiliates or any of its or their direct or indirect equityholders hereunder or otherwise relating to or arising
out of the transactions contemplated hereby or any Debt Financing (including for any willful and material breach), provided that
the foregoing shall not preclude any liability of the Financing Sources to the Parent, Merger Sub and its Affiliates under agreements
among the Financing Sources and such Persons, and after the occurrence of the Effective Time, under any definitive agreements with the
Company Group relating to any Debt Financing. In addition to the foregoing, no termination of this Agreement will affect the rights or
obligations of any Party pursuant to the Confidentiality Agreement or the Clean Team Agreement, which rights, obligations and agreements
will survive the termination of this Agreement in accordance with their respective terms.
8.3
Fees and Expenses.
(a)
General.
(i)
Except as set forth in this Section 8.3, all fees and expenses incurred in connection with this Agreement and the Merger
Transactions will be paid by the Party incurring such fees and expenses whether or not the Merger Transactions are consummated. For the
avoidance of doubt, Parent or the Surviving Corporation will be responsible for all fees and expenses of the Payment Agent.
(ii)
Except as otherwise provided in Section 2.9(e) (Transfers of Ownership), Parent, Merger Sub or the Surviving
Corporation shall bear and pay (or cause to be paid) when due all transfer, stamp, documentary sales, use, registration, value added,
real property transfer and other similar Taxes, fees or charges (including any penalties, interest and additions thereto) incurred in
connection with this Agreement or the consummation of the Merger Transactions, which expressly shall not be a liability of holders of
shares of Company Common Stock.
(b)
Company Payments.
(i)
If (A) this Agreement is validly terminated pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(e);
(B) at the time of such termination, the conditions set forth in Section 7.1(b) and Section 7.1(c) have been
satisfied or are capable of being satisfied and the conditions set forth in Section 7.3(a) and Section 7.3(b)
would be satisfied if the date of such termination was the Closing Date; (C) following the execution and delivery of this Agreement
and prior to the termination of this Agreement pursuant to Section 8.1(c), Section 8.1(d) or Section 8.1(e),
an Acquisition Proposal for an Acquisition Transaction has been publicly announced or publicly disclosed and not withdrawn or otherwise
abandoned; and (D) within one year following the termination of this Agreement pursuant to Section 8.1(c), Section 8.1(d)
or Section 8.1(e), as applicable, either an Acquisition Transaction is consummated or the Company enters into a definitive
agreement providing for the consummation of an Acquisition Transaction, then the Company will concurrently with the consummation of such
Acquisition Transaction pay to Parent an amount equal to $5,240,000 (the “Company Termination Fee”). For purposes
of this Section 8.3(b)(i), all references to “20%” in the definition of “Acquisition Transaction”
will be deemed to be references to “50%.”
(ii)
If this Agreement is validly terminated pursuant to Section 8.1(f) or Section 8.1(g), then the Company
must promptly (and in any event within two Business Days) following such termination pay to Parent the Company Termination Fee.
(iii)
If this Agreement is validly terminated pursuant to Section 8.1(i), then the Company must contemporaneously with such
termination pay to Parent the Company Termination Fee.
(c)
Single Payment Only. The Parties acknowledge and agree that in no event will the Company be required to pay the Company
Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable pursuant to more than one provision
of this Agreement at the same or at different times and upon the occurrence of different events.
(d)
Payments; Default. The Parties acknowledge that the agreements contained in this Section 8.3 are an integral
part of this Agreement, and that, without these agreements, the Parties would not have entered into this Agreement. Accordingly, if the
Company fails to promptly pay any amount due pursuant to Section 8.3(b) and, in order to obtain such payment, Parent commences
a Legal Proceeding that results in a judgment against the Company or Parent, as applicable, for the amount set forth in Section 8.3(b)
or any portion thereof, the Company shall pay to Parent all reasonable and documented out-of-pocket costs and expenses (including reasonable
and documented attorneys’ fees) in connection with such Legal Proceeding, together with interest on such amount or portion thereof
at the annual rate of 5% plus the prime rate as published in The Wall Street Journal in effect on the date that such payment or
portion thereof was required to be made through the date that such payment or portion thereof was actually received, or a lesser rate
that is the maximum permitted by applicable Law. The Parties further acknowledge that the Company Termination Fee shall not constitute
a penalty but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which the Company Termination
Fee is payable thereto, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance
on this Agreement and on the expectation of the consummation of the Merger Transactions, which amount would otherwise be impossible to
calculate with precision. All payments under this Section 8.3 shall be made by the Company to Parent by wire transfer of immediately
available funds to the account set forth on Schedule 8.3.
(e)
Sole and Exclusive Remedy.
(i)
Under no circumstances will the collective monetary damages payable by Parent, Merger Sub or any of their Affiliates for breaches
under this Agreement exceed an amount equal to $10,480,000 plus the Reimbursement Obligations in the aggregate for all such breaches
(the “Parent Liability Limitation”). In no event will any of the Company Related Parties seek or obtain, nor
will they permit any of their Representatives or any other Person acting on their behalf to seek or obtain, nor will any Person be entitled
to seek or obtain, any monetary recovery or award in excess of the Parent Liability Limitation against (A) Parent or Merger Sub;
or (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys,
Financing Sources, Affiliates (other than Parent or Merger Sub), members, managers, general or limited partners, stockholders and assignees
of each of Parent and Merger Sub (the Persons in clauses (A) and (B) collectively, the “Parent Related Parties”),
and in no event will the Company Group be entitled to seek or obtain any monetary damages of any kind, including consequential, special,
indirect or punitive damages, in excess of the Parent Liability Limitation against the Parent Related Parties for, or with respect to,
this Agreement or the transactions contemplated hereby (including, any breach by Parent or Merger Sub), the termination of this Agreement,
the failure to consummate the Merger Transactions or any claims or actions under applicable Law arising out of any such breach, termination
or failure (except that the Parties (or their Affiliates) will remain obligated with respect to, and the Company Group may be entitled
to remedies with respect to, the Confidentiality Agreement, the Clean Team Agreement, the Reimbursement Obligations and Section 8.3(a),
as applicable); provided that the foregoing shall not preclude any liability of the Financing Sources to Parent, Merger Sub and
its Affiliates under agreements among the Financing Sources and such Persons, and after the occurrence of the Effective Time, under any
definitive agreements with the Company Group relating to any Debt Financing. In no event will any Parent Related Party or any Financing
Source other than Parent and Merger Sub have any liability for monetary damages to the Company or any other Person relating to or arising
out of this Agreement or the Merger.
(ii)
Parent’s receipt of the Company Termination Fee, to the extent owed pursuant to Section 8.3(b) (and any payments
owed pursuant to Section 8.3(d)) will be the only monetary damages of Parent and Merger Sub and each of their respective Affiliates
may recover from (i) the Company Group and its Affiliates, and (ii) the former, current and future holders of any equity, controlling
persons, directors, officers, employees, agents, attorneys, other Representatives, Affiliates, members, managers, general or limited
partners, stockholders and assignees of each of the Company Group and its Affiliates (the Persons described in clauses (i) and (ii),
collectively, the “Company Related Parties”) in respect of this Agreement, any agreement executed in connection
herewith and the transactions contemplated hereby and thereby, the termination of this Agreement, the failure to consummate the Merger
Transactions or any claims or actions under applicable Law arising out of any such breach, termination or failure, and, upon payment
of such amount, (x) none of the Company Related Parties will have any further liability or obligation to Parent or Merger Sub relating
to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby and thereby
or any matters forming the basis of such termination (except that the Parties (or their Affiliates) will remain obligated with respect
to, and Parent and Merger Sub may be entitled to remedies with respect to, the Confidentiality Agreement, the Clean Team Agreement, Section 8.3(a)
and Section 8.3(d), as applicable); and (y) none of Parent, Merger Sub or any other Person will be entitled to bring
or maintain any claim, action or proceeding against the Company or any Company Related Party arising out of this Agreement, any agreement
executed in connection herewith or the transactions contemplated hereby and thereby or any matters forming the basis for such termination
(except that the Parties (or their Affiliates) will remain obligated with respect to, and Parent and Merger Sub may be entitled to remedies
with respect to, the Confidentiality Agreement, the Clean Team Agreement, Section 8.3(a) and Section 8.3(d),
as applicable). Notwithstanding anything in this Agreement to the contrary, under no circumstances will the collective monetary damages
payable by the Company or any of its Affiliates for breaches under this Agreement (together with any payment of the Company Termination
Fee pursuant to this Agreement) exceed $5,240,000 in the aggregate for all such breaches (plus any payments owed pursuant to Section 8.3(d))
(the “Company Liability Limitation”). In no event will any of the Parent Related Parties seek or obtain, nor will
they permit any of their Representatives or any other Person acting on their behalf to seek or obtain, nor will any Person be entitled
to seek or obtain, any monetary recovery or award in excess of the Company Liability Limitation against any of the Company Related Parties,
and in no event will Parent or Merger Sub be entitled to seek or obtain any monetary damages of any kind, including consequential, special,
indirect or punitive damages, or any other payments in excess of the Company Liability Limitation against the Company Related Parties
for, or with respect to, this Agreement or the Merger Transactions (including, any breach by Company), the termination of this Agreement,
the failure to consummate the Merger Transactions or any claims or actions under applicable Law arising out of any such breach, termination
or failure. For the avoidance of doubt, if the Company pays to Parent the Company Termination Fee, the Company will not under any circumstances
be required to pay Parent any amount of damages for breach of this Agreement or otherwise (other than any payments owed pursuant to Section 8.3(d)).
(f)
Acknowledgement Regarding Specific Performance. Notwithstanding anything to the contrary in this Agreement, it is agreed
that Parent, Merger Sub and the Company will be entitled to an injunction, specific performance or other equitable relief as provided
in Section 9.8(b), except that, although the Company in its sole discretion, may determine its choice of remedies hereunder,
and may pursue both specific performance in accordance with, but subject to the limitations of, Section 9.8(b), and monetary
damages, under no circumstances will the Company be permitted or entitled to receive both specific performance of the type contemplated
by Section 9.8(b) to consummate the Merger Transactions and any monetary damages.
(g)
Non-Recourse. This Agreement may only be enforced against, and any Legal Proceeding based upon, arising out of, or related
to this Agreement, or the negotiation, execution or performance of this Agreement (other than in connection with the Confidentiality Agreement
and the Clean Team Agreement), may only be brought against the entities that are expressly named as Parties and then only with respect
to the specific obligations set forth herein with respect to such Party. No former, current or future officers, directors, partners, stockholders,
managers, members, Affiliates or agents of any Party (each, a “Non-Recourse Party”) shall have any liability for
any obligations or liabilities of any Party under this Agreement or for any claim or proceeding (whether in tort, contract or otherwise)
based on, in respect of or by reason of the Merger Transactions or in respect of any written or oral representations made or alleged to
be made in connection herewith. In furtherance and not in limitation of the foregoing, each Party covenants, agrees and acknowledges that
no recourse under this Agreement or any other agreement referenced herein or in connection with the Merger Transactions (other than in
connection with the Confidentiality Agreement and the Clean Team Agreement) shall be sought or had against any Non-Recourse Party, except
for claims that any Party may assert against another Party solely in accordance with, and pursuant to the terms and conditions of, this
Agreement. Notwithstanding the foregoing or anything else in this Agreement to the contrary, nothing in this Agreement shall limit the
liability of the parties to the Confidentiality Agreement or Clean Team Agreement in accordance with the terms thereof. The Parties agree
that the Non-Recourse Parties are express third party beneficiaries of, and may enforce, any of the provisions of this Section 8.3(g).
8.4
Amendment. Subject to applicable Law and subject to the other provisions of this Agreement, this Agreement may be amended
by the Parties at any time by execution of an instrument in writing signed on behalf of each of Parent, Merger Sub and the Company (pursuant
to authorized action by the Company Board (or a committee thereof)), except that in the event that the Company has received the Requisite
Stockholder Approval, no amendment may be made to this Agreement that requires the approval of the Company Stockholders pursuant to the
DGCL without such approval. Notwithstanding anything to the contrary in this Agreement, the provisions relating to the Financing Sources
set forth in Section 8.2(b), Section 8.3(e), Section 8.6, Section 9.3(c), Section 9.6(iv),
Section 9.8(b), Section 9.9, Section 9.10(b), Section 9.11 and this Section 8.4
(and any provision of this Agreement to the extent a modification, waiver or termination of such provision would modify the substance
of the provisions relating to the Financing Sources set forth in Section 8.2(b), Section 8.3(e), Section 8.6,
Section 9.3(c), the last sentence of Section 9.6, Section 9.8(b), Section 9.9, Section 9.10(b),
Section 9.11 or this Section 8.4) may not be amended, modified or altered without the prior written consent of
the Financing Sources party to any agreement with Parent or Merger Sub with respect to the Debt Financing.
8.5
Extension; Waiver. At any time and from time to time prior to the Effective Time, any Party may, to the extent legally
allowed and except as otherwise set forth herein, (a) extend the time for the performance of any of the obligations or other acts
of the other Parties, as applicable; (b) waive any inaccuracies in the representations and warranties made to such Party contained
herein or in any document delivered pursuant hereto; and (c) subject to the requirements of applicable Law, waive compliance with
any of the agreements or conditions for the benefit of such Party contained herein. Any agreement on the part of a Party to any such extension
or waiver will be valid only if set forth in an instrument in writing signed by such Party. Any delay in exercising any right pursuant
to this Agreement will not constitute a waiver of such right.
8.6
No Liability of Financing Sources. None of the Financing Sources will have any liability to the Company or any of its
Affiliates relating to or arising out of this Agreement, the Debt Financing or otherwise, whether at Law or equity, in contract, in tort
or otherwise, and neither the Company nor any of its Affiliates will have any rights or claims against any of the Financing Sources hereunder
or thereunder; provided, that nothing in this Section 8.6 shall limit the rights of the Company and its Affiliates
from and after the Effective Time under any debt commitment letter or the definitive debt documents executed in connection with the Debt
Financing (but not, for the avoidance of doubt, under this Agreement) to the extent the Company and/or its Affiliates are party thereto.
Article IX
GENERAL PROVISIONS
9.1
Survival of Representations, Warranties and Covenants. The representations, warranties and covenants of the Company,
Parent and Merger Sub contained in this Agreement will terminate at the Effective Time, except that any covenants that by their terms
survive the Effective Time will survive the Effective Time in accordance with their respective terms.
9.2 Notices.
All notices and other communications hereunder must be in writing and will be deemed to have been duly delivered and received
hereunder (x) four Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid;
(y) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight
courier service; or (z) immediately upon delivery by hand or by email transmission (provided that (A) the subject
line of such email states that it is a notice delivered pursuant to Section 9.2 of this Agreement and (B) the
sender of such email does not receive written notification of delivery failure), in each case to the intended recipient as set forth
below:
(a)
if to Parent or Merger Sub to:
c/o General Catalyst Group Management, LLC
20 University Rd 4th floor
Cambridge, MA 02138
Attention: Chris McCain
Email: [*]
and
c/o Commure, Inc.
1300 Terra Bella Avenue, Suite 200
Mountain View CA 94043
Attention: Daniel Brian; Vidit Mehra
Email: [*]
with a copy (which will not constitute notice)
to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Marshall P. Shaffer, P.C.
Email: [*]
and
Kirkland & Ellis LLP
200 Clarendon St 47th floor
Boston, MA 02116
Attn: Christian A. Atwood, P.C.; Dave Gusella, P.C.; David (Davi) Sacco
Email: [*]; [*]; [*]
(b)
if to the Company (prior to the Effective Time) to:
Augmedix, Inc.
111 Sutter Street, Suite 1300
San Francisco, CA 94104
Attn: Todd Holvick
Email: [*]
with a copy (which will not constitute notice)
to:
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
Attn: John M. Rafferty; Michael G. O’Bryan
Email: [*]; [*]
From time to time, any Party
may provide notice to the other Parties of a change in its address through a notice given in accordance with this Section 9.2.
9.3
Assignment. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without
the prior written approval of the other Parties, except that Parent and Merger Sub will have the right to assign all or any portion of
their respective rights and obligations pursuant to this Agreement from and after the Effective Time (a) in connection with a merger
or consolidation involving Parent or Merger Sub or other disposition of all or substantially all of the assets of Parent, Merger Sub or
the Surviving Corporation; (b) to any of their respective Affiliates; or (c) to any Financing Source pursuant to the terms of
the Debt Financing for purposes of creating a security interest herein or otherwise assigning as collateral in respect of the Debt Financing,
it being understood that, in each case, such assignment will not impede or delay the consummation of the Merger or otherwise materially
impede the rights of the holders of shares of Company Common Stock, Company RSUs, Company Options, Company SARs and the Company Warrants
pursuant to this Agreement. Subject to the preceding sentence, this Agreement will be binding upon and will inure to the benefit of the
Parties and their respective successors and permitted assigns. No assignment by any Party will relieve such Party of any of its obligations
hereunder.
9.4
Confidentiality. Parent, Merger Sub and the Company hereby acknowledge that Parent and the Company have previously
executed a confidentiality agreement dated May 29, 2024 in connection with the contemplated transaction (the “Confidentiality
Agreement”) and the Clean Team Agreement, each of which will continue in full force and effect in accordance with their terms.
Each of Parent, Merger Sub and their respective Representatives will hold and treat all documents and information concerning the Company
Group furnished or made available to Parent, Merger Sub or their respective Representatives in connection with the Merger Transactions
in accordance with the Confidentiality Agreement and the Clean Team Agreement, except that disclosures by Parent or Merger Sub to up
to three (3) potential Financing Sources and current stockholders of Parent will not require the prior written consent of the Company
as contemplated by the Confidentiality Agreement, and that the Company will not unreasonably withhold its consent to requests by Parent
to make disclosures to additional potential financing sources (which such Financing Source and stockholders will, for the avoidance of
doubt, be deemed “Representatives” of Parent under the Confidentiality Agreement). By executing this Agreement, each of Parent
and Merger Sub agree to be bound by, and to direct their Representatives to be bound by, the terms and conditions of the Confidentiality
Agreement and the Clean Team Agreement as if they were parties thereto and Parent and Merger Sub the “Recipient” thereunder,
and Parent shall be liable for any of its Representatives’ breach of the terms of the Confidentiality Agreement or Clean Team Agreement,
including any of the terms of such agreements that Parent is required to direct or cause any such persons to follow. The Parties further
acknowledge and agree that nothing in this Agreement diminishes any of the obligations of any of the parties to the Confidentiality Agreement
or the Clean Team Agreement, and that each of Parent and Merger Sub, and each of their Representatives, including the Financing Sources
and their Representatives, are “Representatives” of Parent under the Confidentiality Agreement.
9.5
Entire Agreement. This Agreement and the documents and instruments and other agreements among the Parties as contemplated
by or referred to herein, including the Confidentiality Agreement, the Clean Team Agreement, the Company Disclosure Letter and the Voting
Agreements, constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements
and understandings, both written and oral, among the Parties with respect to the subject matter hereof. Notwithstanding anything to the
contrary in this Agreement, each of the Confidentiality Agreement and the Clean Team Agreement will (a) not be superseded; (b) survive
any termination of this Agreement; and (c) continue in full force and effect until the earlier to occur of the Effective Time and
the date on which such agreement expires in accordance with its terms or is validly terminated by the parties thereto.
9.6
Third-Party Beneficiaries. Other than (i) after the Effective Time, the right of holders of shares of Company Common
Stock to receive the Per Share Price pursuant to Section 2.7, (ii) after the Effective Time, the right of holders of
Company RSUs, Company Options, Company SARs and Company Warrants to receive the payments referred to in Section 2.8, (iii) the
right of the Indemnified Persons under Section 6.9, (iv) the rights of the Non-Recourse Parties under Section 8.3(g)
and (v) in the event Parent or Merger Sub wrongfully terminates or willfully breaches this Agreement, the right of the Company to
seek monetary damages (including monetary damages based on loss of premium, decrease in share value or loss of the economic benefit of
Merger Transactions) on behalf of the holders of shares of Company Common Stock, Company RSUs, Company Options, Company SARs and the Company
Warrants (which Parent and Merger Sub acknowledge and agree may include damages based on a decrease in share value or lost premium), subject
to the limitations set forth in Section 8.3(e)(i), in each case which will confer third-party beneficiary rights to the Persons
identified therein, nothing in this Agreement, express or implied, will confer upon any Person other than Parent, Merger Sub and the Company
and their respective successors and permitted assigns any right, benefit or remedy of any nature by reason of this Agreement. Notwithstanding
anything herein to the contrary, the rights granted pursuant to clause (v) of this Section 9.6 and the provisions of
Section 8.2(b) shall only be enforceable on behalf of the holders of shares of Company Common Stock, Company RSUs, Company
Options, Company SARs and the Company Warrants by the Company, in its sole and absolute discretion, as agent for such holders, it being
understood and agreed that any and all interests in the recovery of such losses or any such claim shall attach to the shares of Company
Common Stock, Company RSUs, Company Options, Company SARs and the Company Warrants and subsequently be transferred therewith and, consequently,
any damages, settlements or other amounts recovered or received by the Company with respect to such claims (net of expenses incurred by
the Company in connection therewith) may, in the Company’s sole and absolute discretion, be (x) distributed, in whole or in
part, by the Company to such holders as of any date determined by the Company; or (y) retained by the Company for the use and benefit
of the Company in any manner that the Company deems fit.
9.7
Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared
by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the
intent of the Parties. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
9.8
Remedies.
(a)
Remedies Cumulative. 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. Although the Company may pursue both a grant of specific
performance and monetary damages, under no circumstances will the Company be permitted or entitled to receive both a grant of specific
performance that results in the occurrence of the Closing and monetary damages (including any monetary damages in lieu of specific performance).
(b)
Specific Performance.
(i)
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 the Parties do not perform the provisions of this Agreement (including any Party failing to take such actions
as are required of it hereunder in order to consummate this Agreement) in accordance with its specified terms or otherwise breach such
provisions. The Parties acknowledge and agree that, subject to Section 8.6, (A) the Parties will be entitled, in addition
to any other remedy to which they are entitled at Law or in equity, to an injunction, specific performance and other equitable relief
to prevent breaches (or threatened breaches) of this Agreement and to enforce specifically the terms and provisions hereof; (B) the
provisions of Section 8.3 are not intended to and do not adequately compensate the Company, on the one hand, or Parent and
Merger Sub, on the other hand, for the harm that would result from a breach of this Agreement, and will not be construed to diminish or
otherwise impair in any respect any Party’s right to an injunction, specific performance and other equitable relief; and (C) the
right of specific enforcement is an integral part of the Merger Transactions and without that right, neither the Company nor Parent would
have entered into this Agreement. It is explicitly agreed that the Company shall have the right to an injunction, specific performance
or other equitable remedies in connection with enforcing Parent’s and Merger Sub’s obligations to consummate the Merger Transactions.
Notwithstanding the foregoing and subject to the rights of the parties to the definitive agreements for any Debt Financing under the terms
thereof, none of the Company and its Affiliates and their direct and indirect equityholders shall have any rights or claims (whether in
contract or in tort or otherwise) against any Financing Source, solely in their respective capacities as lenders or arrangers in connection
with the Debt Financing, and in no event shall the Company, any of its Affiliates or its or their direct or indirect equityholders be
entitled to directly seek the remedy of specific performance of this Agreement against any Financing Source.
(ii)
The Parties agree not to raise any objections to (A) the granting of an injunction, specific performance or other equitable
relief to prevent or restrain breaches or threatened breaches of this Agreement by the Company, on the one hand, or Parent and Merger
Sub, on the other hand; and (B) the specific performance of the terms and provisions of this Agreement to prevent breaches or threatened
breaches of, or to enforce compliance with, the covenants, obligations and agreements of Parent and Merger Sub pursuant to this Agreement.
Any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement will not be required to provide any bond or other security in connection with such injunction or enforcement, and each
Party irrevocably waives any right that it may have to require the obtaining, furnishing or posting of any such bond or other security.
9.9
Governing Law. This Agreement is governed by and construed in accordance with the Laws of the State of Delaware.
9.10
Consent to Jurisdiction.
(a)
General Jurisdiction. Each of the Parties (i) irrevocably consents to the service of the summons and complaint and
any other process (whether inside or outside the territorial jurisdiction of the Chosen Courts) in any Legal Proceeding relating to the
Merger Transactions, for and on behalf of itself or any of its properties or assets, in accordance with Section 9.2 or in
such other manner as may be permitted by applicable Law, and nothing in this Section 9.10 will affect the right of any Party
to serve legal process in any other manner permitted by applicable Law; (ii) irrevocably and unconditionally consents and submits
itself and its properties and assets in any Legal Proceeding to the exclusive general jurisdiction of the Court of Chancery of the State
of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware
declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware) (the “Chosen Courts”)
in the event that any dispute or controversy arises out of this Agreement or the transactions contemplated hereby; (iii) agrees that
it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (iv) agrees
that any Legal Proceeding arising in connection with this Agreement or the transactions contemplated hereby will be brought, tried and
determined only in the Chosen Courts; (v) waives any objection that it may now or hereafter have to the venue of any such Legal Proceeding
in the Chosen Courts or that such Legal Proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and
(vi) agrees that it will not bring any Legal Proceeding relating to this Agreement or the transactions contemplated hereby in any
court other than the Chosen Courts. Each of Parent, Merger Sub and the Company agrees that a final judgment in any Legal Proceeding in
the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by applicable Law.
(b)
Jurisdiction for Financing Sources. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge
and irrevocably agree (i) that any Legal Proceeding, whether in Law or in equity, in contract, in tort or otherwise, to the extent
involving the Financing Sources arising out of, or relating to, the Merger Transactions, the Debt Financing, or the performance of services
thereunder or related thereto will be subject to the exclusive jurisdiction of any state or federal court sitting in the State of New
York in the borough of Manhattan and any appellate court thereof, and each Party submits for itself and its property with respect to
any such Legal Proceeding to the exclusive jurisdiction of such court; (ii) not to bring or permit any of their Affiliates to bring
or support anyone else in bringing any such Legal Proceeding in any other court; (iii) that service of process, summons, notice
or document by registered mail addressed to them at their respective addresses provided in any applicable debt commitment letter will
be effective service of process against them for any such Legal Proceeding brought in any such court; (iv) to waive and hereby waive,
to the fullest extent permitted by Law, any objection which any of them may now or hereafter have to the laying of venue of, and the
defense of an inconvenient forum to the maintenance of, any such Legal Proceeding in any such court; and (v) any such Legal Proceeding
will be governed and construed in accordance with the Laws of the State of New York.
9.11
WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT TO THIS AGREEMENT
IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING (WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE)
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE MERGER OR THE DEBT FINANCING (INCLUDING ANY SUCH LEGAL PROCEEDING
INVOLVING FINANCING SOURCES). EACH PARTY ACKNOWLEDGES AND AGREES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER;
(B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) IT MAKES THIS WAIVER VOLUNTARILY; AND (D) IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
9.12
Company Disclosure Letter References. The Parties agree that the disclosure set forth in any particular section or subsection
of the Company Disclosure Letter will be deemed to be an exception to (or, as applicable, a disclosure for purposes of) (a) the representations
and warranties (or covenants, as applicable) of the Company that are set forth in the corresponding Section or subsection of this Agreement;
and (b) any other representations and warranties (or covenants, as applicable) of the Company that are set forth in this Agreement,
but in the case of this clause (b) only if the relevance of that disclosure as an exception to (or a disclosure for purposes of)
such other representations and warranties (or covenants, as applicable) is reasonably apparent on the face of such disclosure.
9.13 Counterparts.
This Agreement and any amendments hereto may be executed in one or more counterparts, all of which will be considered one and the
same agreement and will become effective when one or more counterparts have been signed by each of the Parties and delivered to the
other Parties, it being understood that all Parties need not sign the same counterpart. Any such counterpart, to the extent
delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail or other electronic signature system (any such
delivery, an “Electronic Delivery”), will be treated in all manner and respects as an original executed
counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered
in person. No Party may raise the use of an Electronic Delivery to deliver a signature, or the fact that any signature or agreement
or instrument was transmitted or communicated through the use of an Electronic Delivery, as a defense to the formation of a
contract, and each Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
9.14
No Limitation. It is the intention of the Parties that, to the extent possible, unless provisions are mutually exclusive
and effect cannot be given to both or all such provisions, the representations, warranties, covenants and closing conditions in this Agreement
will be construed to be cumulative and that each representation, warranty, covenant and closing condition in this Agreement will be given
full, separate and independent effect and, except as provided by the express terms thereof, nothing set forth in any provision herein
will in any way be deemed to limit the scope, applicability or effect of any other provision hereof.
(Signature page follows)
IN WITNESS WHEREOF, the Parties
have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.
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COMMURE, INC. |
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By: |
/s/ Daniel Brian |
|
Name: |
Daniel Brian |
|
Title: |
Chief Legal Officer and
Chief Financial Officer |
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ANDERSON MERGER SUB, INC. |
|
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By: |
/s/ Daniel Brian |
|
Name: |
Daniel Brian |
|
Title: |
Chief Financial Officer |
Signature Page to Agreement and Plan of Merger
IN WITNESS WHEREOF, the Parties
have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.
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AUGMEDIX, INC. |
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By: |
/s/ Emmanuel Krakaris |
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Name: |
Emmanuel Krakaris |
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Title: |
Chief Executive Officer |
Signature Page to Agreement and Plan of Merger
Exhibit 10.1
FORM
CONFIDENTIAL
VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT
(this “Agreement”), dated as of July 19, 2024, is by and among Commure, Inc., a Delaware corporation (“Parent”),
Anderson Merger Sub, Inc., a Delaware corporation and a wholly-owned direct subsidiary of Parent (“Merger Sub”), and
the undersigned stockholder (the “Stockholder”).
WHEREAS, the Stockholder is,
as of the date hereof, the record and/or beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), which meaning will apply for all purposes of this Agreement) of the number of shares
of Company Common Stock of Augmedix, Inc., a Delaware corporation (the “Company”), in each case, as set forth below
the Stockholder ’s name and signature on its signature page hereto;
WHEREAS, Parent, Merger Sub,
and the Company have entered into an Agreement and Plan of Merger, dated as of the date hereof, in the form attached hereto as Exhibit A
and as may be amended, supplemented or otherwise modified from time to time (the “Merger Agreement”), which provides,
among other things, for the merger of Merger Sub with and into the Company (the “Merger”) upon the terms and subject
to the conditions set forth in the Merger Agreement (capitalized terms used herein without definition shall have the respective meanings
specified in the Merger Agreement); and
WHEREAS, as a condition to
the willingness of Parent and Merger Sub to enter into the Merger Agreement and as an inducement and in consideration therefor, Parent
and Merger Sub have required that the Stockholder, and the Stockholder has (in solely the Stockholder’s capacity as a beneficial
owner of Equity Interests (as defined below)) agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
Section 1.
Representations and Warranties of Stockholder. The Stockholder (in solely the Stockholder’s capacity as a record
and/or beneficial owner of Equity Interests) hereby represents and warrants to Parent and Merger Sub as follows:
| (a) | As of the time of execution of this Agreement, such Stockholder (i) is the record and/or beneficial
owner of the outstanding shares of Company Common Stock (together with any outstanding shares of Company Common Stock, Company Preferred
Stock or other Securities, which such Stockholder may acquire at any time in the future during the term of this Agreement, the “Stockholder
Securities”) set forth opposite the Stockholder’s signature page hereto, and (ii) except as set forth on the Stockholder’s
signature page to this Agreement, neither holds nor has any beneficial ownership interest in any other shares of Company Capital Stock
or any option, warrant, call, proxy, commitment, right or other Securities convertible, exchangeable or exercisable therefor or other
instrument, obligation or right the value of which is based on any of the foregoing (each, an “Equity Interest”). |
| (b) | The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. |
| (c) | This Agreement has been duly and validly executed and delivered by the Stockholder and, assuming this
Agreement constitutes a legal, valid and binding obligation of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to bankruptcy, insolvency (including
all applicable legal requirements relating to fraudulent transfers), reorganization, moratorium and similar legal requirements of general
applicability relating to or affecting creditors’ rights and subject to general principles of equity. |
| (d) | Neither the execution and delivery of this Agreement nor the consummation by the Stockholder of the transactions
contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which the Stockholder is a party or by which the Stockholder or Stockholder’s assets are
bound, except for such violations, defaults or conflicts as would not prevent or materially delay the Stockholder’s performance
of its obligations under this Agreement. Assuming compliance with the applicable provisions of the HSR Act, if applicable, and any applicable
filing, notification or approval in any foreign jurisdiction required by Antitrust Law, and assuming all notifications, filings, registrations,
permits, authorizations, consents or approvals to be obtained or made by the Company, Parent or Merger Sub in connection with the Merger
Agreement and the transactions contemplated thereby are obtained or made, the consummation by the Stockholder of the transactions contemplated
hereby will not (i) cause a violation, or a default, by the Stockholder of any applicable legal requirement or decree, order or judgment
binding on the Stockholder or the Stockholder Securities, (ii) conflict with, result in a breach of, or constitute a default on the
part of the Stockholder under any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which
the Stockholder is a party or by which the Stockholder or its assets are bound, other than as required under the Exchange Act, and except
for such violations, defaults or conflicts or breaches as would not, individually or in the aggregate, prevent or materially delay the
performance by the Stockholder or any of its obligations under this Agreement and the Merger Agreement, or (iii) if such Stockholder
is an entity, violate any provision of such Stockholder’s organizational documents, except in each such case of clauses (i)
through (iii) as would not prevent or materially delay the Stockholder’s performance of its obligations under this Agreement. |
| (e) | The Stockholder Securities and the certificates, if any, representing such Stockholder Securities owned
by the Stockholder are now, and, subject to Section 3(b), at all times during the term hereof will be, held by the Stockholder
or by a nominee or custodian for the benefit of such Stockholder, free and clear of all liens, encumbrances, subscriptions, options, warrants,
calls, proxies, commitments, restrictions and contracts of any kind, except for any such liens or encumbrances arising hereunder, any
applicable restrictions on transfer under the Securities Act and any liens, encumbrances, subscriptions, options, warrants, calls, proxies,
commitments, restrictions or contracts that would not materially impair the Stockholder’s ability to perform
his/her/its obligations hereunder (such liens and encumbrances, “Permitted Liens”). |
| (f) | Subject only to community property laws and any applicable restrictions on transfer under the Securities
Act, the Stockholder has full voting power, with respect to his/her/its shares of Company Common Stock, 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 his/her/its shares of Company Common Stock held in the name of the Stockholder.
The Stockholder Securities of such Stockholder are not subject to any proxy, voting trust or other agreement, arrangement or restriction
with respect to the voting of such Stockholder Securities. |
| (g) | As of the time of execution of this Agreement, there is no Legal Proceeding pending or, to the knowledge
of the Stockholder, threatened against the Stockholder at law or equity before or by any Governmental Authority that would reasonably
be expected to materially impair or materially delay the performance by the Stockholder of its obligations under this Agreement or otherwise
materially and adversely impact the Stockholder’s ability to perform its obligations hereunder. |
| (h) | The Stockholder has received and reviewed a copy of the Merger Agreement. The Stockholder understands
and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Stockholder’s execution,
delivery and performance of this Agreement. |
| (i) | No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s,
financial adviser’s or similar fee or commission for which Parent, Merger Sub or the Company would be responsible in connection
with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of such Stockholder (it being understood
that arrangements of the Company or its other Affiliates shall not be deemed to be an arrangement of such Stockholder). |
Section 2.
Representations and Warranties of Parent and Merger Sub. Each of Parent and Merger Sub hereby, jointly and severally,
represents and warrants to the Stockholder as follows:
| (a) | Each of Parent and Merger Sub is an entity duly organized, validly existing and in good standing under
the laws of the State of Delaware and each of Parent and Merger Sub have the limited liability company or corporate power and authority,
as the case may be, to execute and deliver and perform their obligations under this Agreement and the Merger Agreement and to consummate
the transactions contemplated hereby and thereby, and each has taken all necessary action to duly authorize the execution, delivery and
performance of this Agreement and the Merger Agreement. |
| (b) | Each of this Agreement and the Merger Agreement has been duly authorized, executed and delivered by each
of Parent and Merger Sub, and, assuming each of this Agreement and the Merger Agreement constitutes legal, valid and binding obligations
of the other parties hereto and thereto, constitutes the legal, valid and binding obligations of each of Parent and Merger Sub, are enforceable
against each of them in accordance with their terms, subject to bankruptcy, insolvency (including all legal requirements relating to fraudulent
transfers), reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and
subject to general principles of equity. |
| (c) | Assuming compliance with the applicable provisions of the HSR Act, if applicable, and any applicable filing,
notification or approval in any foreign jurisdiction required by Antitrust Laws, the execution and delivery of this Agreement and the
Merger Agreement by each of Parent and Merger Sub, and the consummation of the transactions contemplated by this Agreement and the Merger
Agreement, will not: (i) cause a violation, or a default, by Parent or Merger Sub of any applicable legal requirement or decree,
order or judgment applicable to Parent or Merger Sub, or to which either Parent or Merger Sub is subject; (ii) conflict with, result
in a breach of, or constitute a default on the part of Parent or Merger Sub under any contract, trust, commitment, agreement, understanding,
arrangement or restriction of any kind to which either Parent or Merger Sub is a party or by which either Parent or Merger Sub or their
respective assets are bound; or (iii) violate any provision of Parent’s or Merger Sub’s organizational documents, except,
in each case of the foregoing clauses (i), (ii) and (iii), for such violations, defaults, conflicts or breaches as would not, individually
or in the aggregate, prevent or materially delay the performance by either Parent or Merger Sub or any of their obligations under this
Agreement and the Merger Agreement. Except as may be required by the Exchange Act (including the filing with the SEC of the Proxy Statement),
any “anti-takeover” laws, the DGCL, in connection with the HSR Act and any filing, notification or approval in any foreign
jurisdiction required by Antitrust Laws, neither Parent nor Merger Sub, nor any of Parent’s other Affiliates, is required to make
any filing with or give any notice to, or to obtain any consent or approval from, any Person at or prior to the consummation of the transactions
contemplated in connection with the execution and delivery of this Agreement or the Merger Agreement by Parent or Merger Sub or the consummation
by Parent or Merger Sub of the Merger and the other transactions contemplated by the Merger Agreement, other than such filings, notifications,
approvals, notices or consents that, if not obtained, made or given, would not, individually or in the aggregate, prevent or materially
delay the performance by either Parent or Merger Sub of any of their obligations under this Agreement and the Merger Agreement. |
Section 3.
Transfer of the Shares; Other Actions.
| (a) | Prior to the Termination Date, except as otherwise expressly provided herein (including pursuant to this
Section 3 or Section 4) or in the Merger Agreement, the Stockholder shall not, and shall cause each of its Subsidiaries
not to: (i) transfer, assign, sell, gift-over, hedge, pledge or otherwise dispose (whether by sale, liquidation, dissolution, dividend or
distribution) of, enter into any derivative arrangement with respect to, or create any lien or encumbrance (other than Permitted Liens)
on or enter into any agreement with respect to any of the foregoing (“Transfer,” which for the avoidance of doubt does
not include any exercise of Equity Interests), any or all of Stockholder’s Equity Interests in the Company, including any Stockholder
Securities; (ii) enter into any contract, option or other agreement, arrangement or understanding with respect to any Transfer; (iii) grant
any proxy, power-of-attorney or other authorization or consent with respect to any of the Stockholder Securities with respect to any matter
that is in contravention of the obligations of Stockholder under this Agreement with respect to Stockholder’s Equity Interests;
(iv) deposit any of Stockholder’s Equity Interests, including the Stockholder Securities, into a voting trust, or enter into
a voting agreement or arrangement with respect to any of such Equity Interests, including the Stockholder Securities, in contravention
of the obligations of Stockholder under this Agreement with respect to Stockholder’s Equity Interests; or (v) knowingly take
or cause the taking of any other action that would materially restrict or prevent the performance of such Stockholder’s obligations
hereunder, excluding any bankruptcy filing. Any action taken in violation of the foregoing sentence shall be null and void ab initio.
If any involuntary Transfer of any of the Stockholder Securities shall occur (including, but not limited to, a sale by Stockholder’s
trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein,
shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Stockholder Securities
subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until the
Termination Date. |
| (b) | Notwithstanding the foregoing, the Stockholder may make (i) Transfers of Equity Interests by will,
intestacy, Governmental Order or by operation of Law or other transfers for estate planning purposes, (ii) with respect to such Stockholder’s
Company Options or Company Warrants which expire on or prior to the termination of the Merger Agreement or as a result of the consummation
of the Merger, Transfers or cancellations of the underlying shares of Company Common Stock to the Company (A) in payment of the exercise
price of such Stockholder’s Company Options or Company Warrants and (B) in order to satisfy taxes or tax withholding obligations
applicable to the exercise of such Stockholder’s Company Options or Company Warrants, (iii) with respect to such Stockholder’s
Company RSUs, Company Options or Company SARs, Transfers or cancellations of the underlying shares of Company Common Stock to the Company
in order to satisfy taxes or tax withholding obligations or for the net settlement of such Company RSUs, Company Options or Company SARs,
(iv) Transfers of shares or other Equity Interests to any stockholders, members partners or equityholders if the Stockholder is an
entity, (v) Transfers of shares or other Equity Interests to any Affiliate or Permitted Transferee, and (vii) other Transfers
of shares or other Equity Interests as Parent may otherwise agree in writing in its sole discretion (but only with the prior written consent
of the Company), so long as, in the case of the foregoing clauses (i), (iv) and (v), any such transferee shall agree in writing to be
bound by this Agreement as a condition to the consummation of any such Transfer. |
“Permitted Transferee”
means, with respect to the Stockholder, (i) a spouse, lineal descendant or antecedent, brother or sister, child or grandchild, adopted
child or grandchild, or the spouse of any child, adopted child, grandchild, or adopted grandchild of such Stockholder, (ii) any charitable
entities or institutions, (iii) any trust, the beneficiaries of which include only the Persons named in clause (i) or (ii) of
this definition, or (iv) any corporation, limited liability company, or partnership, the equity holders of which include only the
Persons named in clause (i) or (ii) of this definition.
| (c) | Stockholder agrees that it/he/she will not exercise any dissenter’s rights available to Stockholder
with respect to the Merger pursuant to Section 262 of the DGCL. |
| (d) | Notwithstanding anything to the contrary herein, nothing in this Agreement shall restrict the Stockholder
from effectuating (i) any Transfer of Equity Interests following the date on which the Requisite Stockholder Approval is obtained
(and any Equity Interests disposed of by the Stockholder in such a Transfer shall no longer constitute Equity Interests or Stockholder
Securities subject to the provisions of this Agreement) or (ii) any ordinary course Transfer by limited partners of any equity interests
of any investment funds advised by the Stockholder or its Affiliates (each such fund, a “Fund”) not formed for the
sole purpose of holding the shares of Company Common Stock, in and of themselves, so long as any such Transfer does not adversely affect
the ability of the Stockholder to perform its obligations under this Agreement. |
Section 4.
Voting of Shares.
| (a) | Prior to the Termination Date, and without in any way limiting Stockholder’s right to vote all its/her/his
shares of Company Common Stock and Company Preferred Stock, as applicable, in its sole discretion on any other matters that may be submitted
to a stockholder vote, consent or other approval, at every annual, special or other meeting of the Company Stockholders called, and at
every adjournment or postponement thereof, Stockholder (in Stockholder’s capacity as a holder of the Stockholder Securities) shall,
or shall cause the holder of record on any applicable record date to, (i) appear (in person or by proxy) at each such meeting or
otherwise cause all of Stockholder’s shares of Company Common Stock and Company Preferred Stock, as applicable, entitled to vote
to be counted as present thereat for purposes of calculating a quorum and (ii) [subject to Section 4(c),]1 vote (or cause
to be voted), in person or by proxy, all shares of Company Common Stock and Company Preferred Stock, as applicable, beneficially owned
by Stockholder and entitled to vote (the “Vote Shares”) (A) in favor of (1) the adoption of the Merger
Agreement and the approval of the Merger and the other transactions contemplated by the Merger Agreement and (2) any non-binding
advisory vote on “golden parachute” executive compensation arrangements, and/or (B) against (1) any action or agreement
which would reasonably be expected to impede, materially delay or adversely affect the consummation of the Merger or result in any of
the conditions to the Company’s obligations to consummate the Merger set forth in Article VII of the Merger Agreement
not being fulfilled, or change in any manner the voting rights of any class of shares of the Company
(including any amendments to the Company’s certificate of incorporation or bylaws), and (2) any Acquisition Proposal. |
1 |
Applicable only to Redmile entities. |
| (b) | Notwithstanding the foregoing, the Stockholder shall retain at all times the right to vote the shares
of Company Common Stock held by it in its sole discretion and without any other limitation on those matters other than those set forth
in Section 4(a)(ii) that are at any time or from time to time presented for consideration to the Company Stockholders. |
| (c) | [Notwithstanding anything else in this Agreement to the contrary, in the event the number of Vote Shares
would represent (when taken together with the Other Vote Shares) more than 45% of the outstanding shares of Company Capital Stock as of
the record date for any stockholder vote, consent or other approval (the “Vote Shares Cap”), at the election of
the Shareholder, the number of Vote Shares shall be reduced correspondingly so that the Vote Shares (when taken together with the Other
Vote Shares) will represent the Vote Shares Cap. |
“Other Vote
Shares” means, as of the record date for any stockholder vote, consent or other approval, all shares of Company Common Stock
and Company Preferred Stock, as applicable, beneficially owned by Company Stockholders other than the Stockholder that are required to
be voted in a manner substantially similar to that described in Section 4(a)(ii), pursuant to any agreement entered into
prior to the signing of the Merger Agreement (other than this Agreement), between Parent or Merger Sub or any of their respective Affiliates,
on the one hand, and any Company Stockholder other than the Stockholder, on the other hand.]2
| (d) | The obligations set forth in this Section 4 shall apply to the Stockholder unless and until
the Termination Date shall have occurred, at which time such obligations shall terminate and be of no further force or effect. |
Section 5. Conditional
Irrevocable Proxy. Solely with respect to the matters described in Section 4 [and subject to Section 4(c),]3
for so long as this Agreement has not been validly terminated in accordance with its terms, and in order to secure the obligations
of the Stockholder to vote their Vote Shares in accordance with the provisions of Section 4 hereof, if the Stockholder
(i) fails to comply with its obligations under Section 4 or (ii) otherwise attempts to vote its Vote Shares, in person or by proxy,
in a manner that is inconsistent with Section 4(a)(ii) (each, a “Triggering Event”), the Stockholder will be
deemed, upon and at the time of such Triggering Event, to hereby irrevocably appoint Parent as its attorney and proxy with full
power of substitution and resubstitution, to the full extent of the Stockholder’s voting rights with respect to all of its
Vote Shares (which proxy is irrevocable and which appointment is coupled with an interest, including for purposes of
Section 212 of the DGCL) to vote, and to execute written consents with respect to, all of its Vote Shares solely on the matters
described in Section 4(a)(ii) and in accordance therewith; provided, that the proxy contemplated by this Section
5 shall not arise and shall have no force or effect prior to the occurrence of a Triggering Event. The Stockholder agrees to
execute any further agreement or form reasonably necessary or appropriate to confirm and effectuate the grant of the proxy contained
herein. Such proxy shall automatically terminate upon the valid termination of this Agreement in accordance
with its terms; provided, that Parent may terminate this proxy at any time in its sole discretion by written notice provided to
the Stockholder. Parent agrees not to exercise the proxy granted herein for any purpose other than the purposes described in this Section 5.
2 |
Applicable only to Redmile entities. |
3 |
Applicable only to Redmile entities. |
Section 6. Directors and Officers. Notwithstanding any provision of this Agreement to the contrary, this Agreement shall apply to
the Stockholder solely in the Stockholder’s capacity as a holder of the Stockholder Securities and/or other Equity Interests in
the Company, and not in such Stockholder’s or any partner, officer, employee or other Representative or Affiliate of Stockholder’s
capacity as (a) a director, officer or employee of the Company or any of its Subsidiaries or (b) a trustee or fiduciary of
any employee benefit plan or trust. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall
(or require Stockholder or any partner, officer, employee or other Representative or Affiliate of Stockholder to attempt to) limit or
restrict any actions or omissions of a director and/or officer of the Company or any of its Subsidiaries, including, without limitation,
in the exercise of his or her fiduciary duties as a director and/or officer of the Company or any of its Subsidiaries 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 and/or officer of the Company or any of its Subsidiaries 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 and/or fiduciary.
Section 7. Further Assurances. Each party shall execute and deliver any additional documents and take such further actions that are
reasonably necessary to carry out all of its obligations under the provisions hereof.
Section 8. Termination.
| (a) | This Agreement, and all rights and obligations of the parties hereunder, shall terminate immediately without
any notice or other action by any Person, upon the earliest to occur of the following (the date of such termination, the “Termination
Date”): |
(i) termination
of the Merger Agreement in accordance with its terms;
(ii) the Effective
Time;
(iii) any change
to the terms of the Merger Agreement (as it exists as of the date of this Agreement) without the prior written consent of the Stockholder
that (A) reduces the Per Share Price or any consideration otherwise payable to the Stockholder (subject to adjustments in compliance
with Section 2.7(b) of the Merger Agreement), (B) changes the form of consideration payable in the Merger or any consideration
otherwise payable with respect to the shares of Company Common Stock beneficially owned by the Stockholder, (C) materially delays
or imposes any additional material restrictions or conditions on the payment of the consideration payable with respect to the Stockholder
Securities or other Equity Interests or (D) materially impedes or materially delays, or imposes any additional material restrictions
or conditions on, the consummation of the Merger;
(iv) subject to
compliance with Section 3(b), the date on which the Stockholder ceases to own any Equity Interests; or
(v) the mutual written
consent of Parent, the Company and the Stockholder.
| (b) | Upon termination of this Agreement, all obligations of the parties under this Agreement will terminate,
without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated
hereby, and no party shall have any claim against another (and no person shall have any rights against such party), whether under contract,
tort or otherwise, with respect to the subject matter hereof, provided, however, that the termination of this Agreement
shall not relieve any party from liability from any willful and material breach of this Agreement prior to such termination; provided,
further, that in the event the Effective Time shall have occurred, the Stockholder shall not have any liability or other obligation
hereunder whatsoever, including with respect to any willful and material breach of this Agreement occurring prior thereto (other than
any breach of Stockholder’s covenant in Section 3(c)). |
| (c) | Sections 8(b), 9 and 12 hereof shall survive the termination of this Agreement. |
Section 9. Expenses.
All fees and expenses incurred in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such fees and expenses, whether or not the Merger is consummated.
Section 10.
Public Announcements. Parent, Merger Sub and the Stockholder (in its capacity as a stockholder of the Company and/or
signatory to this Agreement) shall only make public announcements regarding this Agreement and the transactions contemplated hereby that
are consistent with the public statements made by the Company and Parent in connection with this Agreement, the Merger Agreement and the
transactions contemplated thereby, and only with the prior written consent of Parent. The Stockholder (a) consents to and authorizes
the publication and disclosure by Parent, the Company and their respective Affiliates of its identity and holding of the Stockholder Securities
and the nature of its commitments and obligations under this Agreement in any disclosure required by the SEC or other Governmental Authority,
provided that, such disclosing party shall provide Stockholder and its counsel a reasonable opportunity to review and comment thereon
prior to such publications or disclosures being made public, and such disclosing party shall give reasonable consideration to any such
comments, and (b) agrees promptly to give to Parent and the Company, after written request therefor, any information it may reasonably
require for the preparation of any such disclosure documents. Each of Parent and Merger Sub consents to and authorizes the publication
and disclosure by the Stockholder of the nature of its commitments and obligations under this Agreement and such other matters as may
be required in connection with the Merger in any Form 4, Schedule 13D, Schedule 13G or other disclosure required by the
SEC or other Governmental Authority to be made by any Stockholder in connection with the Merger. Nothing set forth herein shall limit
any disclosure by any Stockholder to its or its Affiliates’ general or current or prospective limited partners or members, or other
Affiliates, on a confidential basis.
Section 11. Adjustments.
In the event (a) of any stock split, stock dividend, merger, reorganization, recapitalization, reclassification, combination, exchange
of shares or the like of the capital stock of the Company on, of or affecting the Stockholder Securities or (b) that the Stockholder
shall become the beneficial owner of any additional shares of Company Capital Stock or other Stockholder Securities, then the terms of
this Agreement shall apply to the shares of Company Capital Stock or other Stockholder Securities held by the Stockholder immediately
following the effectiveness of the events described in clause (a) or the Stockholder becoming the beneficial owner thereof as described
in clause (b), as though, in either case, they were Stockholder Securities hereunder. In the event that the Stockholder shall become
the beneficial owner of any other securities entitling the holder thereof to vote or give consent with respect to the matters set forth
in Section 4(a)(ii) hereof, then the terms of Section 4 hereof shall apply to such other securities as though
they were Stockholder Securities hereunder.
Section 12.
No Solicitation. Subject to Section 6, each Stockholder, solely in its capacity as a stockholder of the
Company, shall not, and shall not instruct, authorize or knowingly permit any of its Representatives acting on its behalf to, directly
or indirectly, (i) solicit, initiate, propose or knowingly induce the making, submission or announcement of, or knowingly encourage,
facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (ii) furnish
to any Person (other than to Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company
Group or afford to any Person access to the business, properties, assets, books, records or other non-public information, or to any personnel,
of the Company Group (other than Parent, Merger Sub or any designees of Parent or Merger Sub), in any such case with the intent to induce
the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes,
or is reasonably expected to lead to, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be
expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person (other than
its Representatives or Parent, Merger Sub or any designees of Parent or Merger Sub) with respect to an Acquisition Proposal (other than
informing such Persons of the provisions contained in Section 5.3 of the Merger Agreement and contacting the Person making the Acquisition
Proposal to the extent necessary to clarify the terms of the Acquisition Proposal); (iv) approve, endorse or recommend an Acquisition
Proposal or any other proposals that would reasonably be expected to lead to an Acquisition Proposal; or (v) enter into any Alternative
Acquisition Agreement. For clarity, if such Stockholder is a venture capital, investment fund or private equity investor, the term “Representative”
(a) shall include any general partner of such Stockholder that is still affiliated with such Stockholder, but (b) shall exclude
(i) any limited partner, (ii) any general partner that is no longer affiliated with such Stockholder, and (iii) any employees
or other Representatives, in each case of clauses (i) to (iii), who do not have actual knowledge of the transactions contemplated
by the Merger Agreement. Notwithstanding the foregoing, nothing in this Section 12 shall restrict (or require Stockholder
to attempt to restrict) any actions or omissions of any director or officer of the Company acting in their capacity as such, provided,
that this sentence shall not affect or otherwise diminish the obligations of the Company under the Merger Agreement, including Section 5.3
therein.
Section 13.
Miscellaneous.
| (a) | Notices. All notices and other communications hereunder must be in writing and will be deemed to
have been duly delivered and received hereunder (i) four Business Days after being sent by registered or certified mail, return receipt
requested, postage prepaid; (ii) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable
nationwide overnight courier service; or (iii) immediately upon delivery by hand or by email transmission (provided that (A) the
subject line of such email states that it is a notice delivered pursuant to this Section 13(a) and (B) the sender of
such email does not receive written notification of delivery failure), to Parent in accordance with Section 9.2 of the Merger Agreement
and to the Stockholder at its address set forth on the Stockholder’s signature page hereto (or at such other address for a party
as shall be specified by like notice). |
| (b) | Headings. The headings contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. |
| (c) | Counterparts. This Agreement and any amendments hereto may be executed in one or more counterparts,
all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. Any such
counterpart, to the extent delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery, an “Electronic
Delivery”), will be treated in all manner and respects as an original executed counterpart and will be considered to have the
same binding legal effect as if it were the original signed version thereof delivered in person. No party may raise the use of an Electronic
Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the
use of an Electronic Delivery, as a defense to the formation of a contract, and each party forever waives any such defense, except to
the extent such defense relates to lack of authenticity. |
| (d) | Entire Agreement, No Third-Party Beneficiaries. This Agreement (i) 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 and (ii) is not intended to confer, nor shall it confer, upon any Person other than the
parties hereto any rights or remedies or benefits of any nature whatsoever, except as expressly set forth in Section 8(a)(v),
Section 13(g) and Section 13(l). |
| (e) | Governing Law, Jurisdiction. This Agreement is governed by and construed in accordance with the
laws of the State of Delaware. Each of the parties hereto (i) irrevocably consents to the service of the summons and complaint and
any other process (whether inside or outside the territorial jurisdiction of the Chosen Courts) in any Legal Proceeding relating to this
Agreement, for and on behalf of itself or any of its properties or assets, in accordance
with Section 13(a) or in such other manner as may be permitted by applicable law, and nothing in this Section 13(e)
will affect the right of any party to serve legal process in any other manner permitted by applicable law; (ii) irrevocably and unconditionally
consents and submits itself and its properties and assets in any Legal Proceeding to the exclusive general jurisdiction of the Court of
Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of
the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware) (the “Chosen
Courts”) in the event that any dispute or controversy arises out of this Agreement or the transactions contemplated hereby;
(iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any
such court; (iv) agrees that any Legal Proceeding arising in connection with this Agreement or the transactions contemplated hereby
or thereby will be brought, tried and determined only in the Chosen Courts; (v) waives any objection that it may now or hereafter
have to the venue of any such Legal Proceeding in the Chosen Courts or that such Legal Proceeding was brought in an inconvenient court
and agrees not to plead or claim the same; and (vi) agrees that it will not bring any Legal Proceeding relating to this Agreement
or the transactions contemplated hereby or thereby in any court other than the Chosen Courts. Each of the parties hereto agrees that a
final judgment in any Legal Proceeding in the Chosen Courts will be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by applicable law. |
| (f) | Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE PURSUANT
TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING (WHETHER FOR BREACH OF CONTRACT, TORTIOUS
CONDUCT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY ACKNOWLEDGES AND AGREES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER;
(iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13(f). |
| (g) | Assignment. Other than in connection with any Transfer permitted by Section 3, no party
may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other
parties hereto, except that Parent and Merger Sub will have the right to assign all or any portion of their respective rights and obligations pursuant
to this Agreement to any party to whom they have assigned the Merger Agreement; provided, however, that (i) Parent
and Merger Sub may assign, in their sole discretion and without the consent of any other party, any or all of their rights, interests
and obligations hereunder to each other or to one or more direct or indirect wholly-owned Subsidiaries of Parent in connection with the
assignment of the rights, interests and obligations of Parent and/or Merger Sub under the Merger Agreement to such indirect wholly-owned
Subsidiaries of Parent in accordance with the terms of the Merger Agreement, and any such assignee may thereafter assign, in its sole
discretion and without the consent of any other party, any or all of its rights, interests and obligations hereunder to one or more additional
direct or indirect wholly-owned Subsidiaries of Parent in connection with the assignment of the rights, interests and obligations of such
assignee under the Merger Agreement to such additional direct or indirect wholly-owned Subsidiaries of Parent in accordance with the terms
of the Merger Agreement and (ii) the Stockholder will have the right to assign all or any portion of its rights and obligations under
this Agreement to one or more Affiliates; provided, that no such assignment shall relieve Parent or Merger Sub (in the case of
clause (i) above) or the Stockholder (in the case of clause (ii) above) of any of its respective obligations under this Agreement.
Any assignment in violation of the preceding sentence shall be void. Subject to the preceding two sentences, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns; provided, that the
Company may rely upon this Agreement and enforce the provisions hereof as an intended and express third-party beneficiary (including in
connection with the obligation of the parties set forth herein to obtain the prior written consent of the Company in connection with the
termination, amendment, modification or waiver of this Agreement). |
| (h) | Severability of Provisions. In the event that any provision of this Agreement, or the application
thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement
will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so
as reasonably to effect the intent of the parties. The parties further agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void
or unenforceable provision. |
| (i) | Specific Performance. 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 the parties hereto do not perform the provisions of this Agreement
(including any party failing to take such actions as are required of it hereunder in order to consummate this Agreement) in accordance
with its specified terms or otherwise breach such provisions. The parties hereto acknowledge and agree that, (i) the parties hereto
will be entitled, in addition to any other remedy to which they are entitled at law or in equity, to an injunction, specific performance
and other equitable relief to prevent breaches (or threatened breaches) of this Agreement and to enforce specifically
the terms and provisions hereof; and (ii) the right of specific enforcement is an integral part of the Agreement and without that
right, Parent would not have entered into this Agreement. It is accordingly agreed that each party shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being
in addition to any other remedy to which they are entitled at law or in equity and any party seeking an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement will not be required to provide any
bond or other security in connection with such injunction or enforcement, and each party irrevocably waives any right that it may have
to require the obtaining, furnishing or posting of any such bond or other security. |
| (j) | Amendment. No amendment or modification of this Agreement shall be effective unless it shall be
in writing and signed by each of the parties hereto, and only with the prior written consent of the Company. No waiver or consent hereunder
shall be effective against any party unless it shall be in writing and signed by such party, and only with the prior written consent of
the Company. |
| (k) | Binding Nature. This Agreement shall be binding upon, and shall be enforceable by and inure solely
to the benefit of, the parties hereto and their respective successors and permitted assigns. |
| (l) | No Recourse. Parent and Merger Sub agree that the Stockholder will not be liable for claims, losses,
damages, expenses and other liabilities or obligations resulting from or related to the Merger Agreement or the Merger (other than any
liability for claims, losses, damages, expenses and other liabilities or obligations solely to the extent arising under, and in accordance
with the terms of, this Agreement, provided, that, except in respect of any breach of Stockholder’s covenant in Section 3(c),
in no event shall such claims, losses, damages, expenses or other liabilities or obligations include consequential, indirect, special
or similar damages), including the Company’s breach of the Merger Agreement. Notwithstanding anything to the contrary herein, this
Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the
transactions contemplated hereby may only be brought against, the Persons that are expressly named as parties hereto and their respective
successors and assigns. Except as set forth in the immediately preceding sentence, no past, present or future director, officer, manager,
employee, incorporator, member, partner, stockholder, equityholder, controlling person, Affiliate, agent, attorney, advisor or representative
of any party hereto, and no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder,
equityholder, controlling person, Affiliate, agent, attorney, advisor or representative of any of the foregoing (each, a “Non-Recourse
Party”) shall have any liability for any obligations or liabilities of any party hereto under this Agreement (whether in tort,
contract or otherwise) or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby. The parties hereto
acknowledge and agree that the Non-Recourse Parties are third party
beneficiaries of this Section 13(l), each of whom may enforce the provisions thereof. |
| (m) | No Presumption. This Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. |
| (n) | No Agreement Until Executed. This Agreement shall not be effective unless and until (i) the
Merger Agreement is executed by all parties thereto and (ii) this Agreement is executed by all parties hereto. |
| (o) | No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent or
Merger Sub any direct or indirect ownership or incidence of ownership of or with respect to the Stockholder Securities. All rights, ownership
and economic benefits of and relating to the Stockholder Securities shall remain vested in and belong to Stockholder, and neither Parent
nor Merger Sub shall have any authority to manage, direct, 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 Stockholder Securities, except
as otherwise specifically provided herein. |
[Signature pages follow]
IN WITNESS WHEREOF, Parent,
Merger Sub and Stockholder have caused this Agreement to be duly executed and delivered as of the date first written above.
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COMMURE, INC. |
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Chief Financial Officer |
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ANDERSON MERGER SUB, INC. |
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Daniel Brian |
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Chief Financial Officer |
Signature Page to Voting and Support Agreement
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STOCKHOLDER |
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Stockholder Securities: |
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Company Common Stock: _____________ |
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Company RSUs: _____________________ |
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Company Options: ___________________ |
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Company Preferred Stock:__________________ |
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Company Warrants: ______________________ |
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Company SARs: ______________________ |
Signature Page to Voting and Support Agreement
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
Exhibit 99.1
Augmedix to Join Forces with Commure
Combination to Strengthen Ability to Deliver
Frontier Ambient AI Solutions;
Augmedix Stockholders to Receive $2.35 Per Share in All-Cash Acquisition by Commure
SAN FRANCISCO, July 19, 2024 – Augmedix,
Inc. (Nasdaq: AUGX), a leader in ambient AI medical documentation and data solutions, today announced
that it has entered into a definitive agreement to be acquired by Commure, Inc., a leading provider of technology to healthcare systems,
in an all-cash transaction that values Augmedix at approximately $139 million in equity value.
Under the terms of the agreement, Augmedix stockholders will receive $2.35 per share in cash upon completion of the proposed transaction, and Augmedix
will become a wholly-owned subsidiary of Commure. The purchase price represents a premium of approximately 169% over the volume
weighted average price (VWAP) of Augmedix’s common stock for the 30 days ending July 18, 2024.
“This
proposed transaction with Commure provides certainty and a premium value for our stockholders, representing a transformative next step
in Augmedix’s mission to unburden clinicians of administrative tasks while dramatically improving health system efficiency,”
said Manny Krakaris, Chief Executive Officer at Augmedix. “As part of Commure, we believe Augmedix will be well-positioned to scale
ambient documentation solutions to even more clinicians and health systems while simultaneously accelerating efforts to infuse more innovative
features, integrations, and AI capabilities into our product suite. Importantly, Commure is strongly aligned with Augmedix’s mission
and vision for the future. We believe that the significant resources, deep industry expertise, and broadened technology capabilities we
gain through this transaction will strengthen our market position, enable us to take advantage of more opportunities and create a powerful,
future-focused company. We look forward to continuing to serve our customers and support our employees
who are relentless in their pursuit of better clinical, operational, and financial outcomes.”
“Through our acquisition of Augmedix,”
added Tanay Tandon, Chief Executive Officer at Commure, “we’re taking a huge step forward in building the health AI operating
system of the future, using language models to consolidate various point solutions into a single, integrated platform for providers, clinical
operations teams, and healthcare IT.”
Transaction
Details
Under the terms of the agreement with Augmedix,
Commure will acquire all outstanding shares of Augmedix common stock for a total equity value of approximately $139 million. Augmedix
stockholders will receive $2.35 in cash per share. Augmedix’s Board of Directors unanimously approved the transaction. The closing
of the transaction is expected in late Q3 or early Q4, subject to approval by Augmedix stockholders and the satisfaction of other customary
closing conditions. Upon completion of the transaction, Augmedix’s common stock will no longer be publicly listed, and Augmedix
will become a privately held company. The transaction is expected to be funded from Commure’s cash on hand and available liquidity.
Advisors
Evercore
is serving as exclusive financial advisor to Augmedix, and Morrison Foerster is serving as legal advisor to Augmedix. Morgan Stanley &
Co. LLC is serving as financial advisor to Commure, and Kirkland & Ellis is serving as legal advisor to Commure.
About Augmedix
Augmedix (Nasdaq: AUGX) empowers clinicians to
connect with patients by liberating them from administrative burden through the power of ambient AI, data, and trust. The platform transforms
natural conversations into organized medical notes, structured data, and point-of-care notifications that enhance efficiency and clinical
decision support. Incorporating data from millions of interactions across all care settings, Augmedix collaborates with hospitals and
health systems to improve clinical, operational, and financial outcomes. Augmedix is headquartered in San Francisco, CA, with offices
around the world. To learn more, visit www.augmedix.com.
About Commure
The administrative and technological burden facing
the healthcare workforce today has overtime eroded the human side of healthcare –– separating providers from the reason why
they got into medicine in the first place: seeing patients and providing exceptional care. Commure’s mission is to once again make
health the focus of healthcare by using AI and automation to eliminate distractions and keep providers connected to their patients throughout
the care journey. The Commure suite of automated and AI-enabled hardware, software, and services results in happier and healthier patients,
less time wasted on administrative tasks, safer staff, and more reliable insurance reimbursements. Since merging with Athelas, Commure’s
growing suite of solutions now includes Patient Engagement, Workflow Automation, Staff Safety, At-Home Patient Monitoring, Billing Solutions,
and Automated Dictation. Commure supports more than 250,000 clinicians and staff and hundreds of thousands of patients across hundreds
of care sites. Visit commure.com, athelas.com, or LinkedIn to learn more.
Contact Information
For Augmedix:
Investors:
Matt Chesler, CFA
FNK IR
646-809-2183
augx@fnkir.com
investors@augmedix.com
Media:
Kaila Grafeman
Augmedix
pr@augmedix.com
For Commure:
Daniel Brian
daniel@commure.com
Cautionary Statement Regarding Forward-Looking
Statements
This communication may contain forward-looking
statements, which include all statements that do not relate solely to historical or current facts, such as statements regarding the pending
acquisition of Augmedix, Inc. (the “Company”) by Commure, Inc. (“Parent”) (the “Merger”) and the expected
timing of the closing of the Merger and other statements that concern the Company’s expectations, intentions or strategies regarding
the future. In some cases, you can identify forward-looking statements by the following words: “may,” “will,”
“could,” “would,” “should,” “expect,” “intend,” “plan,” “anticipate,”
“believe,” “estimate,” “predict,” “project,” “aim,” “potential,”
“continue,” “ongoing,” “goal,” “can,” “seek,” “target” or the
negative of these terms or other similar expressions, although not all forward-looking statements contain these words. These forward-looking
statements are based on the Company’s beliefs, as well as assumptions made by, and information currently available to, the Company.
Because such statements are based on expectations as to future financial and operating results and are not statements of fact, actual
results may differ materially from those projected and are subject to a number of known and unknown risks and uncertainties, including,
but not limited to: (i) the risk that the Merger may not be completed on the anticipated timeline or at all; (ii) the failure to satisfy
any of the conditions to the consummation of the Merger, including the receipt of required approval from the Company’s stockholders;
(iii) the occurrence of any event, change or other circumstance or condition that could give rise to the termination of the definitive
agreement between the Company and Parent relating to the Merger, including in circumstances requiring the Company to pay a termination
fee; (iv) the effect of the announcement or pendency of the Merger on the Company’s business relationships, operating results and
business generally; (v) risks that the Merger disrupts the Company’s current plans and operations; (vi) the Company’s ability
to retain and hire key personnel and maintain relationships with key business partners and customers, and others with whom it does business;
(vii) risks related to diverting management’s or employees’ attention during the pendency of the Merger from the Company’s
ongoing business operations; (viii) the amount of costs, fees, charges or expenses resulting from the Merger; (ix) potential litigation
relating to the Merger; (x) uncertainty as to timing of completion of the Merger and the ability of each party to consummate the Merger;
(xi) risks that the benefits of the Merger are not realized when or as expected; (xii) the risk that the price of the Company’s
common stock may fluctuate during the pendency of the Merger and may decline significantly if the Merger is not completed; and (xiii)
other risks described in the Company’s filings with the U.S. Securities and Exchange Commission (the “SEC”), such as
the risks and uncertainties described under the headings “Cautionary Note Regarding Forward-Looking Statements,” “Risk
Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and other sections
of the Company’s Annual Report on Form 10-K, the Company’s Quarterly Reports on Form 10-Q, and in the Company’s other
filings with the SEC. While the list of risks and uncertainties presented here is, and the discussion of risks and uncertainties to be
presented in the proxy statement on Schedule 14A that the Company will file with the SEC relating to its special meeting of stockholders
will be, considered representative, no such list or discussion should be considered a complete statement of all potential risks and uncertainties.
Unlisted factors may present significant additional obstacles to the realization of forward-looking statements. Consequences of material
differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business
disruption, operational problems, financial loss, legal liability to third parties and/or similar risks, any of which could have a material
adverse effect on the completion of the Merger and/or the Company’s consolidated financial condition. The forward-looking statements
speak only as of the date they are made. Except as required by applicable law or regulation, the Company undertakes no obligation to update
any forward-looking statements, whether as a result of new information, future events or otherwise.
The information that can be accessed through hyperlinks
or website addresses included in this communication is deemed not to be incorporated in or part of this communication.
Additional Information and Where to Find It
This communication is being made in respect of
the Merger. In connection with the proposed Merger, the Company will file with the SEC a proxy statement on Schedule 14A relating to its
special meeting of stockholders and may file or furnish other documents with the SEC regarding the Merger. When completed, a definitive
proxy statement will be mailed to the Company’s stockholders. STOCKHOLDERS ARE URGED TO CAREFULLY READ THE PROXY STATEMENT REGARDING
THE MERGER (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO AND ANY DOCUMENTS INCORPORATED BY REFERENCE THEREIN) AND ANY OTHER RELEVANT
DOCUMENTS FILED OR FURNISHED WITH THE SEC IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION
ABOUT THE MERGER. The Company’s stockholders may obtain free copies of the documents the Company files with the SEC from the SEC’s
website at www.sec.gov or through the Company’s website at ir.augmedix.com under the link “SEC Filings” or by contacting
the Company’s Investor Relations department via e-mail at investors@augmedix.com.
Participants in the Solicitation
The Company and its directors
and executive officers may be deemed to be participants in the solicitation of proxies from the Company’s stockholders with respect
to the Merger. Information about the Company’s directors and executive officers and their ownership of the Company’s common
stock is set forth in the Company’s Amended Annual Report on Form 10-K/A for the fiscal year ended December 31, 2023 filed with
the SEC on April 29, 2024. To the extent that such individual’s holdings of the Company’s common stock have changed since
the amounts printed in the Company’s Amended Annual Report on Form 10-K/A for the fiscal year ended December 31, 2023 filed with
the SEC on April 29, 2024, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC.
Additional information regarding the identity of such participants, and their direct or indirect interests in the Merger, by security
holdings or otherwise, will be set forth in the proxy statement and other materials to be filed with SEC in connection with the Merger.
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