COVENANTS
6.1 Access and Information. During the period from the
date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 9.1 or the Closing (the “Interim Period”), subject to
Section 6.14, the Company shall give, and shall cause its Representatives to give, the SPAC and its Representatives, at reasonable times during normal business hours and upon
reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information (including
Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Company, as the SPAC or its Representatives may reasonably request regarding the Company and its businesses,
assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement, a copy of
each material report, Schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or
any other conditions required by such accountants, if any)) and cause the Company’s Representatives to reasonably cooperate with the SPAC and its Representatives in their investigation; provided, however, that the SPAC and
its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Company. During the Interim Period, subject to Section 6.14, the SPAC shall give, and shall cause its Representatives to give, the Company and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable
access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information (including Tax Returns, internal working papers, client
files, client Contracts and director service agreements), of or pertaining to the SPAC, as the Company or its Representatives may reasonably request regarding the SPAC, its respective business, assets, Liabilities, financial condition,
prospects, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement, a copy of each material report, Schedule and other
document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such
accountants, if any)) and cause each of the SPAC’s Representatives to reasonably cooperate with the Company and its Representatives in their investigation; provided, however, that the Company and its Representatives shall
conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the SPAC.
6.2 Conduct of Business of the Company and its Subsidiaries.
Unless the SPAC shall otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as
expressly contemplated by this Agreement or the Ancillary Documents, the Company and its Subsidiaries shall (i) conduct their business, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply
in all material respects with all Laws applicable to the Company and its business, assets and employees, and (iii) take all commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business
organization, to keep available the services of their managers, directors, officers, employees and individual service providers, and to preserve the possession, control and condition of their assets.
Except as expressly contemplated by the terms of this Agreement or the Ancillary Documents, during the Interim Period, without the prior written consent of the SPAC
(such consent not to be unreasonably withheld, conditioned or delayed), the Company and its Subsidiaries shall not, unless required by applicable Law:
(a) amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(b) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity
securities or any options, restricted stock units, restricted stock, phantom stock, stock appreciation, profit participation, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or
other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based or phantom equity awards, or engage in any hedging
transaction with a third Person with respect to such securities;
(c) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof
or declare, pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to
acquire any of its securities (except for the repurchase of Company Shares from former employees, non-employee directors and consultants in accordance with agreements as in effect on the date hereof that are set forth on the Company
Disclosure Schedules providing for the repurchase of shares in connection with any termination of service);
(d) incur, create, assume, prepay, commit to, or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in
excess of $250,000 individually or $750,000 in the aggregate, make a loan or advance to or investment in any third party (other than advancement of expenses to employees in the ordinary course of business), or guarantee or endorse any
Indebtedness, Liability or obligation of any Person in excess of $250,000 individually or $750,000 in the aggregate;
(e) except as required by the terms in existence as of the date hereof of any Company Benefit Plan set forth on Section 5.20(b) of
the Company Disclosure Schedules or applicable Law, (i) increase or decrease the wages, salaries or any other compensation or benefits provided to any of its current or former employees, officers, directors or other individual service
providers, including under any Company Benefit Plan or any other benefit or compensation plan, agreement, contract, program, policy or arrangement that would be a Company Benefit Plan if in effect as of the date hereof (other than ordinary course increases in the annual base salary (and corresponding increases in any annual target bonus linked to a percentage of base salary) to employees whose annual base salary is below $100,000
(prior to such increase)), (ii) make, announce or commit to make any retention, change in control, transaction, severance or similar payment (whether cash, properties or securities) to any employee, officer, director or other individual
service provider of the Company or (iii) enter into, establish, amend, modify, commence participation in or terminate any Company Benefit Plan, including any benefit or compensation plan, policy, program, contract, agreement or arrangement
that would be a Company Benefit Plan if in effect on the date hereof;
(f) take any action to (i) hire, engage, or otherwise enter into any employment or consulting agreement or other service agreement with,
or terminate (other than for “cause”) any officer, director, or, other than in the ordinary course consistent with past practice, any employee or other individual service provider of the Company, (ii) grant, promise or announce any cash,
equity, equity-based or phantom equity awards, other than in the ordinary course and consistent with past practice, (iii) accelerate, or commit to accelerate, the payment, funding, right to payment or vesting of any compensation or
benefits, (iv) enter into, amend, negotiate or terminate any Labor Agreement or recognize or certify any labor union, works council or labor organization as the bargaining representative for any employees of the Company, or (v) knowingly or
through conduct waive or release any noncompetition, nonsolicitation, or other restrictive covenant obligation of any current or former employee or other individual service provider;
(g) make, change or rescind any material election relating to Taxes, settle or compromise any Action, arbitration, investigation, audit or
controversy relating to Taxes, enter into any closing agreement with respect to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as
required by applicable Law or in compliance with IFRS;
(h) sell, assign, transfer, license or sublicense to any Person or otherwise extend, materially amend or modify, abandon, permit to lapse
or expire, subject to any Lien, otherwise dispose of, or fail to preserve any material Owned IP or Company IP Licenses (excluding non-exclusive licenses granted to customers in the ordinary course of business consistent with past practice),
disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets, or disclose, license, escrow, or otherwise make available, or grant any rights to, any Source Code owned or purported to be owned by the Company;
(i) other than in the ordinary course and consistent with past practice with respect to customers and suppliers, (i) enter into any
amendment of any Company Material Contract or enter into any Contract that if entered into prior to the Effective Date would be a Company Material Contract, (ii) voluntarily terminate any Company Material Contract, except for any
termination at the end of the term of such Company Material Contract pursuant to the terms of such Company Material Contract, or (iii) waive any material benefit or right under any Company Material Contract;
(j) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past
practice;
(k) establish any Subsidiary or enter into any new line of business;
(l) voluntarily terminate, cancel, materially modify or amend, permit to lapse, or fail to keep in force any insurance policies
maintained for the benefit of the Company or providing insurance coverage with respect to its assets, operations and activities, without replacing or revising such policies with a comparable amount of insurance coverage with substantially
similar coverage to that which is currently in effect;
(m) revalue any of its material assets or make any material change in accounting methods, principles or practices, except to the extent
required to comply with IFRS and after consulting with the Company’s outside auditors;
(n) waive, release, assign, commence, initiate, satisfy, settle or compromise any Action, other than waivers, releases, assignments,
settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Company or its Affiliates) not in excess of $100,000 individually or
$500,000 in the aggregate;
(o) close or materially reduce its activities, effect any group layoff or effect any other group personnel reduction, at any of its
facilities, provided that the Company shall have the right to terminate personnel in accordance with the terms of Section 6.2(f);
(p) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any
corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(q) other than as contemplated by the Company’s capital expenditures budget attached hereto as Schedule C, make capital
expenditures in excess of $100,000 (individually for any project (or set of related projects) or $500,000 in the aggregate);
(r) authorize, recommend, propose or announce an intention to adopt, or otherwise effect a plan of complete or partial liquidation,
rehabilitation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or similar transaction;
(s) purchase, sell, lease, license, transfer, exchange or swap, pledge, mortgage or otherwise pledge or encumber (including securitizations),
or transfer or otherwise dispose of any material portion of its properties, assets or rights (including equity interests of the Company); or
(t) enter into any agreement, understanding or arrangement with respect to the voting of equity securities of the Company.
Nothing contained in this Section 6.2 shall be deemed to give the SPAC or AmalCo Sub, directly or indirectly, the right to control or direct the Company prior
to the Closing. Prior to the Closing, the Company shall exercise, consistent with the terms and conditions hereof, control over its business and operations.
6.3 Conduct of Business of the SPAC.
Unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except as
expressly contemplated by this Agreement or the Ancillary Documents, the SPAC shall comply with all Laws applicable to the SPAC. Notwithstanding anything to the contrary in this Section 6.3, nothing in this Agreement shall prohibit
or restrict the SPAC from extending, in accordance with the SPAC’s Organizational Documents and the IPO Prospectus, the deadline by which it must complete its Business Combination (an “Extension”), and no consent of any other Party
shall be required in connection therewith.
Without limiting the generality of this Section 6.3 and except as contemplated by the terms of this Agreement or the Ancillary Documents (including the SPAC
Continuance), during the Interim Period, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), the SPAC shall not, unless required by applicable Law:
(a) other than with respect to the SPAC Continuance, amend, waive or otherwise change, in any respect, its Organizational Documents or the
Trust Agreement except as required by applicable Law;
(b) other than in connection with a Financing (or in respect of Sponsor loans to fund SPAC working capital in accordance with clause (d)
below), issue, grant, sell, pledge, dispose of or authorize to issue, grant, sell, pledge or dispose of any of its equity securities, or issue or sell, or authorize to issue or sell, any options, warrants, commitments, subscriptions or
rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other
equity-based awards;
(c) (i) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect
thereof or (ii) declare, pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares or other equity interests, or (iii) other than as permitted under its
Organizational Documents and as required for the Redemption, directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(d) (i) incur, assume, prepay or otherwise become liable or responsible (whether directly, contingently or otherwise) for any Indebtedness
in excess of $100,000 individually or $500,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligations of any Person (provided, that this Section
6.3(d)(i) shall not prevent the SPAC from borrowing funds necessary to finance working capital needs (including to pay Expenses incurred in connection with the consummation of the Arrangement, the Amalgamation and the other
transactions contemplated by this Agreement (including SPAC Extension Expenses) and any ordinary course operating expenses), which debt for borrowed money permits or allows all or any portion of such debt for borrowed money to be converted
into the number of SPAC Warrants not to exceed $1,500,000 (with such SPAC Warrants issued at one dollar ($1.00) per SPAC Warrant with the same terms as the SPAC Private Warrants) or which may be otherwise repaid in cash);
(e) make, change or rescind any material election relating to Taxes, settle or compromise any claim, Action, Proceeding, audit or
controversy relating to Taxes, enter into any closing agreement with respect to Taxes, file any amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures, in each case except as
required by applicable Law or in compliance with GAAP or IFRS;
(f) amend, waive or otherwise change the Trust Agreement in any manner adverse to the SPAC;
(g) terminate, waive or assign any material right under any SPAC Material Contract;
(h) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past
practice, other than (i) as required by GAAP or SEC rules or disclosure guidance or (ii) upon the advice of the SPAC’s counsel or auditors, changes to such practices generally applicable to special purpose acquisition companies;
(i) establish any Subsidiary (other than Amalco Sub) or enter into any new line of business;
(j) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing
insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect as of the date of this Agreement;
(k) waive, release, assign, initiate, settle or compromise any pending or threatened Action, other than which are not material to the SPAC
and which do not relate to the transactions contemplated hereby;
(l) buy, purchase or otherwise acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly,
any material portion of assets, securities, properties, interests or businesses of any Person outside the ordinary course of business;
(m) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other
reorganization (other than with respect to the Arrangement and the Amalgamation); or
(n) enter into any agreement, understanding or arrangement with respect to the voting of the SPAC Securities, other than in connection
with the transactions contemplated hereby or a Financing.
Nothing contained in this Section 6.3 shall be deemed to give the Company, directly or indirectly, the right to control or direct the SPAC prior to the Closing.
Prior to the Closing, the SPAC shall exercise, consistent with the terms and conditions hereof, control over its business.
6.4 Annual and Interim Financial Statements.
(a) During the Interim Period, as promptly as practicable after the date of this Agreement and in the case of Section 6.4(a)(x)(i)
and Section 6.4(a)(x)(iii) below, in no event later than October 9, 2023 (“Financial Statements Delivery Date”), the Company shall deliver to the SPAC the following financial statements (such financial statements, the “Required
Financial Statements”): (x) (i) audited consolidated balance sheet of the Company and its Subsidiaries as of July 31, 2022 and July 31, 2023, and the related audited consolidated statements of comprehensive loss, cash flows and
securityholders equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of the Company’s independent auditors (which reports shall be unqualified) in each
case audited in accordance with the standards of the PCAOB (the “PCAOB Financial Statements”); (ii) all other audited and unaudited financial statements of the Company and its Subsidiaries and any company or business units acquired
by the Company, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Registration Statement, the Proxy Statement or the Closing Form 8-K (including pro forma financial
information); and (iii) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Securities Exchange Act (as if the Company and its Subsidiaries were
subject thereto) with respect to the periods described in clauses (i) and (ii) above, as necessary for inclusion in the Registration Statement, the Proxy Statement or the Closing Form 8-K (including pro forma financial
information) and (y) within forty-five (45) calendar days following the end of each three-month quarterly period and each fiscal year, an unaudited income statement and an unaudited balance sheet of the Company for the period from the
Latest Balance Sheet Date through the end of such calendar month, quarterly period or fiscal year and the applicable comparative period in the preceding fiscal year, in each case accompanied by a certificate of the Chief Financial Officer
of the Company to the effect that all such financial statements fairly present the financial position and results of operations of the Company as of the date or for the periods indicated, in accordance with GAAP, subject to year-end audit
adjustments and excluding footnotes.
(b) All Required Financial Statements delivered pursuant to this Section 6.4, together with all related notes and schedules
thereto, (i) will be prepared from, and reflect in all material respects, the books and records of the Company, (ii) will be compliant with IFRS and prepared in accordance with GAAP applied on a consistent basis throughout the periods
covered thereby, (iii) will fairly present, in all material respects, the consolidated financial position of the Company, as of the dates thereof and their results of operations for the periods then ended, and (iv) will be audited in
accordance with the standards of the PCAOB. All costs incurred in connection with preparing and obtaining such financial statements shall be Expenses of the Company.
(c) The Company shall use reasonable best efforts (i) to assist the SPAC and its Representatives, upon advance written notice, during
normal business hours and in a manner such as to not unreasonably interfere with the normal operation of the Company, in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma
financial statements) that is reasonably required to be included in the Registration Statement, the Proxy Statement and any other filings to be made by the SPAC with the SEC in connection with the transactions contemplated by this Agreement
and the Ancillary Documents and (ii) to obtain the consents of the Company’s auditors with respect thereto as may be required by applicable Law.
6.5 SPAC Public Filings. During the Interim Period, the
SPAC will keep current and timely file (giving effect to any applicable extensions available to the SPAC with respect to such filings) all of its public filings with the SEC and otherwise comply in all material respects with applicable
securities Laws and shall use its reasonable best efforts prior to the Closing to maintain the listing of the SPAC Class A Shares on Nasdaq; provided, however, that the SPAC shall use its reasonable best efforts to obtain,
and the Company will use its reasonable best efforts to cooperate with the SPAC to obtain, a listing of the New PubCo Common Shares on Nasdaq effective as of the Closing.
6.6 No Solicitation.
(a) For purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of
interest in making an offer or proposal, from any Person or group at any time (other than, with respect to the Company, an existing shareholder of the Company, including a Core Company Shareholder or their respective Affiliates, or existing
Company Affiliate or insider) relating to an Alternative Transaction, and (ii) an “Alternative Transaction” means (A) with respect to the Company and its Affiliates, a transaction (other than the transactions contemplated by this
Agreement) concerning the sale of (I) all or any material part of the business or assets of the Company (other than a sale of immaterial assets in the ordinary course of business consistent with past practice) or (II) any of the shares or
other equity interests or profits of the Company, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation, issuance of debt securities, management Contract, joint
venture or partnership, or otherwise and (B) with respect to the SPAC and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning a Business Combination involving the SPAC.
(b) During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources
in furtherance of the transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the prior written consent of the Company and the SPAC, directly or indirectly, (i) solicit, assist, initiate
or facilitate the making, submission or announcement of, or intentionally encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding such Party or its Affiliates or their respective businesses, operations,
assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or
participate in discussions or negotiations with any Person or group with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or
recommend, any Acquisition Proposal, or (v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal.
(c) Each Party shall notify the other Parties as promptly as practicable (and in any event within 48 hours) in writing of the receipt by
such Party or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide
inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to such Party or its
Affiliates in connection with any Acquisition Proposal, specifying in each case, the material terms and conditions thereof. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or
requests for information. During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any
Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.
(d) If the Company receives a bona fide unsolicited Acquisition Proposal that constitutes a Superior Proposal, the Company Board may, or
may cause the Company to, make a Change in Recommendation and approve, recommend or enter into a definitive agreement with respect to such Superior Proposal, if and only if:
(i) the Person making the Superior Proposal was not restricted from making such Superior Proposal pursuant to an
existing standstill or similar restriction;
(ii) the Company has been, and continues to be, in compliance with its obligations under this Section 6.6;
(iii) the Company or its Representatives have delivered to the SPAC a written notice of the determination of the Company
Board that it has received a Superior Proposal and of the intention to approve, recommend or enter into a definitive agreement with respect to such Superior Proposal, including a notice as to the value in financial terms that the Company
Board has, in consultation with its financial advisors, determined should be ascribed to any non-cash consideration offered under the Superior Proposal (the “Superior Proposal Notice”);
(iv) the Company or its Representatives have provided to the SPAC a copy of any proposed definitive agreement, LOI or term
sheet for the Superior Proposal;
(v) at least five Business Days (the “Matching Period”) have elapsed from the date that is the later of the date
on which the SPAC received the Superior Proposal Notice and the date on which the SPAC received a copy of the definitive agreement for the Superior Proposal;
(vi) after the Matching Period, the Company Board has determined in good faith, after consultation with its legal counsel
and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (and, if applicable, compared to the terms of the Arrangement as proposed to be amended by the SPAC under Section 6.6(e));
(vii) the approval of the Arrangement Resolution by the Company Shareholders has not been obtained; and
(viii) prior to or concurrently with making a Change in Recommendation or entering into such definitive agreement the
Company terminates this Agreement.
(e) During the Matching Period, or such longer period as the Company may approve in writing for such purpose: (a) the Company Board shall
review any offer made by the SPAC to amend the terms of this Agreement and the Arrangement in good faith, after consultation with legal and financial advisors, in order to determine whether such proposal would, upon acceptance, result in
the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (b) the Company shall negotiate in good faith with the SPAC to make such amendments to the terms of this Agreement and the
Arrangement as would enable the SPAC or its affiliates to proceed with the transactions contemplated by this Agreement on such amended terms. If as a consequence of the foregoing the Company Board determines that such Acquisition Proposal
would cease to be a Superior Proposal, the Company shall promptly so advise the SPAC and the Company and the SPAC shall amend this Agreement to reflect such offer made by the SPAC, and shall take and cause to be taken all such actions as
are necessary to give effect to the foregoing.
(f) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value
of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 6.6(f).
(g) Nothing in this Agreement shall prohibit the Company Board from responding through a directors’ circular or otherwise as required by
applicable Laws to an Acquisition Proposal that it determines is not a Superior Proposal to inform them of such. Further, nothing in this Agreement shall prevent the Company Board from making any disclosure to the Company Shareholders if
the Company Board, acting in good faith and upon the advice of its legal and financial advisors, shall have determined that the failure to make such disclosure would be inconsistent with the fiduciary duties of the Company Board or such
disclosure is otherwise required under Law; provided, however, that, notwithstanding that the Company Board shall be permitted to make such disclosure, the Company Board shall not be permitted to make a Change in
Recommendation, other than as permitted by Section 6.6(d).
(h) If the Company provides a Superior Proposal Notice to the SPAC after a date that is less than five Business Days before the Company
Meeting, the Company shall, upon request from the SPAC, postpone the Company Meeting to a date that is not more than 15 Business Days after the scheduled date of the Company Meeting (and, in any event, no less than five Business Days prior
to the Outside Date); provided, however, that if the Company has fully complied with Section 6.6(d) through Section 6.6(e), and has determined that the Acquisition Proposal continues to be a Superior Proposal
in accordance with Section 6.6(d), it may then cancel the Company Meeting only if prior to or concurrently therewith it makes a Change in Recommendation or enters into such definitive agreement and the Company terminates this
Agreement immediately prior thereto.
6.7 No Trading.
(a) The Company acknowledges and agrees that it is aware, and that the Company’s Affiliates are aware (and each of their respective
Representatives is aware or, upon receipt of any material nonpublic information of the SPAC, will be advised) of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC and Nasdaq promulgated
thereunder or otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees that, while it is
in possession of such material nonpublic information, it shall not purchase or sell any securities of the SPAC (other than to engage in the Arrangement and the Amalgamation in accordance with Article I), communicate such information
to any third party, take any other action with respect to the SPAC in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
(b) The SPAC acknowledges and agrees that it is aware, and that the SPAC’s Affiliates are aware (and each of their respective Representatives
is aware or, upon receipt of any material nonpublic information of the Company, will be advised) of the restrictions imposed by Canadian securities Laws and the rules of Cboe Canada and other applicable foreign and domestic Laws on a Person
possessing material nonpublic information about a publicly traded company. The SPAC hereby agrees that, while it is in possession of such material nonpublic information, it shall not purchase or sell any securities of the Company (other
than to engage in the Arrangement and the Amalgamation in accordance with Article I), communicate such information to any third party, take any other action with respect to the Company in violation of such Laws, or cause or
encourage any third party to do any of the foregoing.
6.8 Notification of Certain Matters. During the Interim
Period, each Party shall give prompt notice to the other Parties if such Party or its Affiliates: (a) fails to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its Affiliates hereunder,
in any material respect; (b) receives any notice or other communication in writing from any third party (including any Governmental Authority) alleging (i) that the Consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement or (ii) any non-compliance with any Law by such Person or its Affiliates; (c) receives any notice or other communication from any Governmental Authority in connection with the transactions
contemplated by this Agreement; (d) discovers any fact or circumstance that, or becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would make any representation or warranty contained
in this Agreement, false or untrue, would reasonably be expected to constitute a breach of any covenant or agreement contained in this Agreement, or would reasonably be expected to cause or result in any of the conditions to the Closing
set forth in this Agreement, not being satisfied or the satisfaction of those conditions being materially delayed; or (e) becomes aware of the commencement or threat, in writing, of any Action against such Person or any of its Affiliates,
or any of their respective properties or assets, or, to the actual knowledge of such Person, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Person or of its Affiliates with respect to the
consummation of the transactions contemplated by this Agreement. No such notice shall constitute an acknowledgement or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been
satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
6.9 Efforts; Regulatory Filings.
(a) Upon the terms and subject to the conditions of this Agreement, each Party shall use its reasonable best efforts, and shall cooperate
fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to consummate the transactions contemplated
by this Agreement (including obtaining all applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental Authorities applicable to the transactions contemplated by this
Agreement.
(b) As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use
(and shall cause their respective Affiliates to use) their respective commercially reasonable efforts to prepare and file with Governmental Authorities requests for approval of the transactions contemplated by this Agreement and shall use
all reasonable best efforts to have such Governmental Authorities approve the transactions contemplated by this Agreement.
(c) Each Party shall give prompt written notice to the other Parties if such Party or any of its Representatives receives any notice from
such Governmental Authorities in connection with the transactions contemplated by this Agreement and shall promptly furnish the other Parties with a copy of such Governmental Authority notice. Each Party shall give the other Party and its
counsel a reasonable opportunity to review in advance, to the extent permissible, and consider in good faith the views and input of the other Party in connection with, any proposed material written communication to any Governmental
Authority relating to the transactions contemplated hereby. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the transactions contemplated hereby, whether prior to the Closing or
after the Closing, each Party shall arrange for Representatives of such Party to be present for such hearing or meeting.
(d) If any objections are asserted with respect to the transactions contemplated by this Agreement under any applicable Law or if any
Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable
Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby, the Parties shall use their commercially reasonable efforts to resolve any such objections or
Actions so as to timely permit consummation of the transactions contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections or Actions which, in any case if not resolved, could reasonably be
expected to prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby. In the event any Action is instituted (or threatened to be instituted) by a Governmental Authority or private
Person challenging the transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective
commercially reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement or the Ancillary Documents.
(e) Notwithstanding the immediately preceding paragraph, nothing contained herein shall be deemed to require the SPAC or the Company, and
the SPAC and the Company shall not be permitted (without the written consent of the other party), to take any action, or commit to take any action, or agree to any condition, commitment or restriction, in connection with obtaining the
foregoing Permits, consents, Orders, approvals, waivers, non-objections and authorizations of Governmental Authorities that would reasonably be expected to be materially financially burdensome to the business, operations, financial
condition or results of operations on the business of the Company, or on the business of the SPAC (which restriction, commitment, or condition could include materially increasing capital, divesting or reducing lines of businesses or asset
classes, entering into compliance or remediation programs, and making material lending or investment commitments).
(f) Prior to the Closing, each Party shall use its commercially reasonable efforts to obtain any Consents of Governmental Authorities or
other third Persons as may be necessary for the consummation by such Party or its Affiliates of the transactions contemplated by this Agreement or required as a result of the execution or performance of, or consummation of the transactions
contemplated by, this Agreement by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
6.10 Tax Matters.
(a) Neither the holders of SPAC Securities nor the Company Securityholders shall have any obligation or Liability with respect to any
Excise Tax imposed on the Company, the SPAC or New PubCo as a result of the Redemption or the Business Combination, and neither the holders of SPAC Securities nor the Company Securityholders shall be required to indemnify any Person for the
payment of such Excise Tax. Following the Closing, the Company or New PubCo (as applicable) shall be responsible for the prompt payment of any Excise Tax if and when due.
(b) New PubCo shall pay all transfer, documentary, sales, use, stamp, registration, value added or other similar Taxes incurred in connection
with the transactions contemplated by this Agreement (collectively, the “Transfer Taxes”) and file all necessary Tax Returns with respect to all Transfer Taxes, and if required by applicable Law, the Parties shall, and shall cause
their respective Affiliates to, join in the execution of any such Tax Returns and other document. Notwithstanding any other provision of this Agreement, the Parties shall (and shall cause their respective Affiliates to) cooperate in good
faith to minimize, to the extent permissible under applicable Law, the amount of any such Transfer Taxes, which shall constitute “Expenses” hereunder.
(c) The Parties agree and intend that, to the greatest extent permitted by Law, for U.S. federal (and applicable state and local) income
tax purposes, the transactions contemplated by this Agreement are intended to be treated consistent with the Intended Tax Treatment. Provided the Arrangement, including the Amalgamation, satisfy the requirements applicable to the Intended
Tax Treatment, the Parties will prepare and file all Tax Returns consistent with the Intended Tax Treatment and will not take any inconsistent position on any Tax Return; provided, however, that no Party shall be
unreasonably impeded in its ability and discretion to negotiate, compromise or settle any Tax audit, claim or similar proceedings in connection with the Intended Tax Treatment. Notwithstanding the foregoing or anything herein to the
contrary, none of the Parties makes any representation, warranty or covenant to any other Party (except to the extent expressly provided in Section 3.11(f), Section 4.12 and Section 5.15(l)) or holder of SPAC
Securities or Company Securityholder regarding the tax treatment of the Arrangement, the SPAC Continuance, the Business Combination or any component of any of the foregoing.
(d) This Agreement is and is hereby adopted as a “plan of reorganization” for purposes of Sections 354 and 361 of the Code and the U.S.
Treasury Regulations promulgated thereunder with respect to the Amalgamation.
(e) The Parties shall execute and deliver (i) officer’s certificates, in customary form, in a timely manner upon request by the other
Party and (ii) any other representations reasonably requested by counsel to the SPAC or counsel to the Company, as applicable, for purposes of rendering opinions regarding the Intended Tax Treatment and other tax matters in connection with
the transactions contemplated by this Agreement, at such time or times as may be requested by counsel to the SPAC or counsel to the Company, including in connection with the Closing and any filing with the SEC. In the event the SEC requests
or requires a tax opinion on the Inversion or Intended SPAC Tax Treatment, the SPAC shall use reasonable best efforts to cause Kirkland & Ellis LLP (“K&E”) to deliver such opinion, and in the event the SEC requests or
requires a tax opinion on the Inversion or Intended Company Tax Treatment, the Company shall use reasonable best efforts to cause Morrison & Foerster LLP (“MoFo”) to deliver such opinion, each such opinion being subject to the
assumptions, qualifications, and reasoning as determined by the counsel delivering such opinion, and each party shall use reasonable best efforts to execute and deliver customary tax representation letters as the applicable tax advisor may
reasonably request in form and substance reasonably satisfactory to such advisor and reasonably cooperate in the mutual exchange of information relevant to the delivery of such opinions and representation letters. Notwithstanding anything
to the contrary in this Agreement, (x) K&E shall not be required to provide, nor shall the SPAC be required to seek, any opinion to any party regarding the Intended Company Tax Treatment, and (v) MoFo shall not be required to provide,
nor shall the Company be required to seek, any opinion to any party regarding the Intended SPAC Tax Treatment.
6.11 Further Assurances. The Parties shall further
cooperate with each other and use their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on their part under this Agreement and
applicable Laws to consummate the transactions contemplated by this Agreement as soon as reasonably practicable, including preparing and filing as soon as practicable all documentation to effect all necessary notices, reports and other
filings.
6.12 The Registration Statement.
(a) As promptly as practicable after the date hereof, the SPAC shall prepare, with the reasonable assistance of the Company, and file with
the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, the “Registration Statement”) in connection with the registration under the Securities Act of (x) the New PubCo Common Shares to be issued
under this Agreement as the Common Amalgamation Consideration, (y) the Convertible Note Shares to be issued in respect of the Company Shares issued pursuant to conversion of the Company Convertible Notes and (z) the replacement New PubCo
Securities to be issued in the SPAC Continuance, which Registration Statement will also contain a proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from the SPAC Shareholders for the matters to
be acted upon at the SPAC Special Meeting and providing the SPAC Public Shareholders an opportunity, in accordance with the SPAC’s Organizational Documents, to have their SPAC Shares redeemed (such rights to have their SPAC Shares redeemed,
“Redemption Rights,” and such redemption thereof, the “Redemption”) in conjunction with the shareholder vote on the SPAC Shareholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of
soliciting proxies from the SPAC Shareholders to vote, at a special meeting of the SPAC Shareholders to be called and held for such purpose (the “SPAC Special Meeting”), in favor of approving (i) the adoption and approval of this
Agreement and the transactions contemplated hereby or referred to herein by the SPAC Shareholders in accordance with the SPAC’s Organizational Documents, (ii) the effecting of the SPAC Continuance, including the conversion of SPAC Class A
Shares and SPAC Class B Shares contemplated hereby, (iii) the issuance of New PubCo Common Shares, including any New PubCo Common Shares to be issued in connection with the Financing, as may be required under Nasdaq’s listing requirements,
(iv) a non-binding advisory vote on the adoption and approval of certain differences between the existing SPAC Charter and bylaws and the New PubCo Organizational Documents, (v) the adoption and approval of the New PubCo Organizational
Documents, (vi) the adoption and approval of a new equity incentive plan, in a form reasonably acceptable to the Company and the SPAC, and which will provide for the reservation for future issuance of a number of New PubCo Common Shares
equal to ten percent (10%) of the aggregate number of New PubCo Common Shares issued and outstanding immediately after the Closing (calculated after giving effect to the Redemption, assuming full exercise of the Converted Options and the
Converted Warrants and settlement of the Converted RSUs), (vii) such other matters as the Company and the SPAC shall hereafter mutually determine to be necessary or appropriate in order to effect the Arrangement, the Amalgamation and the
other transactions contemplated by this Agreement, (the approvals described in foregoing clauses (i) through (vii), collectively, the “SPAC Shareholder Approval Matters”), (viii) the adjournment of the SPAC Special Meeting, if
necessary or desirable in the reasonable determination of the SPAC, and (ix) any other proposals as the SEC or Nasdaq may indicate are necessary in its comments to the Registration Statement or correspondence related thereto.
(b) Notwithstanding anything to the contrary contained in this Agreement, the SPAC may (and, in the case of the following clause (ii),
at the request of the Company, shall) adjourn the SPAC Special Meeting for a period of no longer than fifteen (15) calendar days (in each case): (i) after consultation with the Company, to the extent necessary to ensure that any supplement
or amendment to the Registration Statement that the SPAC Board has determined in good faith is required by applicable Law be provided to the SPAC Public Shareholders; (ii), in each case, for one (1) or more periods, (x) if as of the time
for which the SPAC Special Meeting is originally scheduled (as set forth in the Registration Statement), there are insufficient voting equity interests of the SPAC represented (either in person or by proxy) to constitute a quorum necessary
to conduct the business of the SPAC Special Meeting or (y) in order to solicit additional proxies from the SPAC Public Shareholders for purposes of obtaining the requisite approval with respect to the SPAC Shareholder Approval Matters;
(iii) to seek withdrawals of redemption requests from the SPAC Public Shareholders or (iv) if the Company Meeting has been adjourned or delayed; provided, that, in the event of any such adjournment, the SPAC Special Meeting shall be
reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved. The SPAC and the Company and their respective counsel shall cooperate and provide one another with a reasonable
opportunity to review and comment on the Registration Statement and any amendment or supplement thereto prior to filing the same with the SEC, and any comments timely made shall be considered in good faith. The Company and the SPAC shall
each provide the other with such information concerning the Company, the SPAC and their respective shareholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be
required or appropriate for inclusion in the Registration Statement, or in any amendments or supplements thereto, which information provided by the Company or the SPAC, as applicable, shall be true and correct in all material respects and
not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made not misleading.
(c) The SPAC shall take all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act
and other applicable Laws in connection with the Registration Statement and the included Proxy Statement, the SPAC Special Meeting and the Redemption. Each of the SPAC and the Company shall make their respective directors, officers and
employees, upon reasonable advance notice, available to the Company, the SPAC and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement,
including the Registration Statement and the included Proxy Statement, and shall respond in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Registration Statement and
the included Proxy Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. The SPAC shall amend
or supplement the Registration Statement and cause the Registration Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to the SPAC Shareholders, in each case as and to the extent required by applicable
Laws and subject to the terms and conditions of this Agreement and the SPAC’s Organizational Documents; provided, however, that the SPAC shall not amend or supplement the Proxy Statement without prior written consent of the
Company, not to be unreasonably withheld, conditioned, or delayed.
(d) The SPAC, with the assistance of the other Parties, shall promptly respond to any SEC comments on the Registration Statement and shall
otherwise use its commercially reasonable efforts to cause the Registration Statement to “clear” comments from the SEC and become effective. The SPAC shall provide the Company with copies of any written comments, and shall inform the
Company of any material oral comments, that the SPAC or its Representatives receive from the SEC or its staff with respect to the Registration Statement, the SPAC Special Meeting and the Redemption promptly after the receipt of such
comments and shall give the Company and its counsel a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments, and the SPAC shall consider any such comments
timely made in good faith under the circumstances.
(e) As soon as practicable following the Registration Statement becoming effective, the SPAC shall distribute the Proxy Statement to the
SPAC Shareholders, and pursuant thereto, shall call the SPAC Special Meeting in accordance with the Securities Act and applicable Delaware Law for a date no later than thirty (30) days following the commencement of mailing of the Proxy
Statement to the SPAC Shareholders or if later, the date on which the Company Meeting is contemplated to occur pursuant to Section 2.3.
(f) The SPAC shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, the SPAC’s Organizational Documents and
this Agreement in the preparation, filing and distribution of the Registration Statement, any solicitation of proxies thereunder, the calling and holding of the SPAC Special Meeting and the Redemption.
(g) All Expenses of, related to and incurred in connection with the preparation, filing, processing, and approval of the Registration
Statement including, but not limited to, all auditing, accounting, legal, exchange listing fees, SEC and other filing fees, proxy fees, redemption fees, printing fees and mailing expenses shall constitute Expenses of the Company and shall
be promptly paid by the Company as and when due.
6.13 Public Announcements.
(a) The Parties agree that during the Interim Period no public release, filing or announcement concerning this Agreement or the Ancillary
Documents or the transactions contemplated hereby or thereby shall be issued by any Party or any of their Affiliates without the prior written consent of the SPAC and the Company (which consent shall not be unreasonably withheld,
conditioned or delayed), except as such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party shall use commercially reasonable efforts to allow
the other Parties reasonable time to comment on, and arrange for any required filing with respect to, such release or announcement in advance of such issuance; provided, however, that the foregoing shall not prohibit the
SPAC, the Sponsor, and their respective Representatives from providing general publicly available information about the subject matter of this Agreement and the transactions contemplated hereby to any direct or indirect current or
prospective investor, including in connection with the transactions contemplated hereby or a Financing, or in connection with normal fund raising or related marketing or informational or reporting activities; and provided, further,
that subject to Section 6.2 and this Section 6.13, the foregoing shall not prohibit any Party from communicating with third parties to the extent necessary for the purpose of seeking any required third party consent.
Notwithstanding the foregoing, the SPAC and the Company may make statements that are consistent with previous public releases made by such Party in compliance with this Section 6.13.
(b) The Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement, issue a press release
announcing the execution of this Agreement (the “Signing Press Release”). Promptly after the issuance of the Signing Press Release, the SPAC shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press
Release (which shall be “furnished” and not “filed”) and a description of this Agreement as required by Federal Securities Laws, upon which the Company shall have the opportunity to review and provide comments prior to filing and the SPAC
shall consider any such comments in good faith, and the Company shall file a material change report as required by Canadian securities Laws, which the SPAC shall have the opportunity to review and comment prior to filing and the Company
shall consider any such comments in good faith. The Parties shall mutually agree upon and, as promptly as practicable after the Closing, issue a press release announcing the consummation of the transactions contemplated by this Agreement
(the “Closing Press Release”). Promptly after the issuance of the Closing Press Release, New PubCo shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release (which shall be “furnished” and
not “filed”) and a description of the Closing as required by Federal Securities Laws, which the Sponsor shall have the opportunity to review and comment, and the Company shall file a material change report as required by Canadian securities
laws, which the SPAC and the Sponsor shall have the opportunity to review and comment. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing, the Closing Press Release, or any other report,
statement, filing notice or application made by or on behalf of a Party to any Governmental Authority or other third party in connection with the transactions contemplated hereby, each Party shall, upon request by any other Party, furnish
the Parties with all information concerning themselves, their respective directors, officers and securityholders, and such other matters as may be reasonably necessary or advisable in connection with the transactions contemplated hereby, or
any other report, statement, filing, notice or application made by or on behalf of a Party to any third party or any Governmental Authority in connection with the transactions contemplated hereby.
6.14 Confidential Information. During the Interim Period
until the Closing or the earlier termination of this Agreement in accordance with Article IX, each Party shall be bound by and comply with the provisions set forth in the Confidentiality
Agreement as if such provisions were set forth herein, and such provisions are hereby incorporated herein by reference. Each Party acknowledges and agrees that each is aware, and each of their respective Affiliates and representatives is
aware (or upon receipt of any material nonpublic information of the other Party, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons
possessing material nonpublic information about a public company.
6.15 Post-Closing Board of Directors and Executive Officers; Employment Agreements.
(a) The Parties shall take all necessary action, including causing the directors of the SPAC to resign, such that (i) effective as of the
Effective Time, the post-closing New PubCo Board will consist of up to nine (9) directors (the “Post-Closing New PubCo Board”), including: (A) five (5) directors set forth on Schedule 6.15(a)(i) or any other individuals
designated by the Company in replacement of such designees prior to the Closing, who shall be reasonably acceptable to the SPAC, (B) two (2) directors set forth on Schedule 6.15(a)(ii) or any other individuals designated by the SPAC
in replacement of such designees prior to the Closing, who shall be reasonably acceptable to the Company, and (C) up to two (2) directors who are independent in accordance with Nasdaq and SEC guidelines and mutually designated by the
Company and the SPAC prior to the Closing, and (ii) the Post-Closing New PubCo Board will be elected effective as of the Effective Time in accordance with the New PubCo Organizational Documents, Nasdaq rules and National Instrument 52-110
for audit committee purposes; provided, however, that the Chairman of the Company immediately prior to the Effective Time shall be the Chairman of the Post-Closing New PubCo Board immediately after the Effective Time, unless
the Parties mutually designate an alternative Chairman prior to the Effective Time. Prior to the effectiveness of the Registration Statement, the Sponsor and the Company shall mutually agree (such agreement not to be unreasonably withheld,
conditioned, or delayed by either the Company or the Sponsor) on the directors to be appointed to the audit, compensation and nominating committees.
(b) The Parties shall take all action necessary, including causing the executive officers of the SPAC to resign, such that the individuals
serving as the Chief Executive Officer and Chief Financial Officer of the Company immediately prior to the Effective Time will serve in the same respective offices of New PubCo immediately after the Effective Time.
(c) The SPAC and the Company shall obtain a background check and a completed directors & officers questionnaire with respect to any
individual that will serve on the Post-Closing New PubCo Board at the Company’s expense.
(d) At or prior to the Closing, New PubCo will provide each member of the Post-Closing New PubCo Board with a customary director
indemnification agreement.
(e) Prior to the Closing Date, each Key Employee shall enter into an employment agreement with New PubCo, each in a form mutually and
reasonably agreed upon by the Company and the SPAC and shall become effective as of the Closing Date (each, a “Key Employment Agreement” and, collectively, the “Key Employment Agreements”).
6.16 Treatment of Related Party Transactions. On or before
the Closing Date, except for this Agreement and any Ancillary Documents, the Company shall cause all Liabilities and obligations of the Company or any of its Subsidiaries under any Related Party Transaction (other than those set forth on
Section 6.16 of the Company Disclosure Schedules) to be terminated in full without any further force and effect and without any costs to, Liabilities to or obligations of New PubCo, the SPAC, the Company, any Subsidiaries of the
Company or any of their respective Affiliates (except as set forth on Section 6.16 of the Company Disclosure Schedules).
6.17 Indemnification of Directors and Officers; Tail Insurance.
(a) The Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or
former directors and officers of the Company, the SPAC or Amalco Sub and each Person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee
benefit plan or enterprise at the request of, as applicable, the Company, the SPAC or Amalco Sub (the “D&O Indemnified Persons”) as provided in their respective Organizational Documents or under any indemnification, employment or
other similar agreements between any D&O Indemnified Person and the Company, the SPAC or Amalco Sub, in each case as in effect on the date of this Agreement, shall survive the Closing and continue in full force and effect in accordance
with their respective terms to the extent permitted by applicable Law. For a period of six (6) years after the Effective Time, New PubCo and the Company shall cause the Organizational Documents of New PubCo and the Company to contain
provisions no less favorable with respect to exculpation and indemnification of and advancement of expenses to D&O Indemnified Persons than are set forth as of the date of this Agreement in the respective Organizational Documents of the
Company, the SPAC and Amalco Sub to the extent permitted by applicable Law. The provisions of this Section 6.17 shall survive the consummation of the Arrangement and the Amalgamation and are intended to be for the benefit of, and
shall be enforceable by, each of the D&O Indemnified Persons and their respective heirs and representatives.
(b) At or prior to the Closing Date, the Company shall purchase and maintain in effect for a period of six (6) years thereafter, “run-off”
coverage as provided by the Company’s and the SPAC’s fiduciary policies, in each case, covering those Persons who are covered by such policies on the Effective Date and with terms, conditions, retentions and limits of liability that are no
less advantageous than the coverage provided under the Company’s or the SPAC’s existing policies (the “Tail Policy”); provided, that in no event shall the Company be required to expend on the premium thereof in excess of two
hundred fifty percent (250%) of the aggregate annual premiums currently payable by the Company and the SPAC with respect to such current policies (the “Premium Cap”); provided, further, that if such minimum coverage
under any such Tail Policy is or becomes not available at the Premium Cap, then any such Tail Policy shall contain the maximum coverage available at the Premium Cap. New PubCo and Amalco shall maintain the Tail Policy in full force and
effect, and continue to honor the obligations thereunder, and New PubCo and Amalco shall be responsible for and shall timely pay or caused to be paid all premiums with respect to the Tail Policy.
(c) If New PubCo, the Company or any of their respective successors or assigns (i) shall merge or consolidate with or merge into any other
corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of their respective properties and assets as an entity in one or a
series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of new PubCo or the Company shall assume all of the obligations set forth in this Section 6.17.
(d) The D&O Indemnified Persons entitled to the indemnification, liability limitation, exculpation and insurance set forth in this
Section 6.17 are intended to be third party beneficiaries of this Section 6.17. This Section 6.17 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors
and assigns of the SPAC and the Company.
6.18 Trust Account Proceeds. Subject to the satisfaction
or waiver of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those
conditions) and provision of notice thereof to the Trustee (which notice the SPAC shall provide to the Trustee in accordance with the terms of the Trust Agreement), in accordance with the Trust Agreement and SPAC Organizational Documents,
at the Closing, the SPAC shall (a) cause the documents and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (b) use its best efforts to cause the Trustee to pay as and when due all
amounts payable to SPAC Shareholders who shall have validly elected to redeem their SPAC Class A Shares pursuant to the SPAC Organizational Documents and use its best efforts to cause the Trustee to pay as and when due the Deferred
Discount (as defined in the Trust Agreement) pursuant to the terms of the Trust Agreement, except to the extent that such Deferred Discount is waived in whole or in part, and use its best efforts to cause the Trustee to make such other
disbursements as instructed by the SPAC in accordance with this Agreement.
6.19 Financing.
(a) During the Interim Period, the SPAC may seek to obtain additional financing commitments from third-party investors (the “Financing
Investors”) by entering into subscription agreements in form and substance and with terms reasonably satisfactory to the Company (the “Financing Agreements”), pursuant to which the Financing Investors may commit to make a
private investment in New PubCo by way of subscribing for equity securities, debt securities or other equity-linked or convertible securities of New PubCo (collectively, a “Financing”). The obligations of the Parties to consummate
the Closing shall not be conditioned upon the consummation of a specific minimum amount of Financing. In the event that one (1) or more Financing Agreements is entered into by the SPAC in connection with the Financing, (i) the SPAC may not
modify or waive, or provide consent to modify or waive (including consent to termination, to the extent required), any provisions of any such Financing Agreement or any remedy thereunder, in each case, without the prior written consent of
the Company, other than immaterial or ministerial modifications or waivers, (ii) the SPAC shall use its reasonable best efforts to take, or cause to be taken, all actions and take reasonable best efforts to do, or cause to be done, all
things necessary, proper or advisable to consummate the transactions contemplated by each such Financing Agreement on the terms and subject to the conditions described therein, including satisfying on a timely basis all conditions and
covenants applicable to the SPAC and otherwise complying with its obligations thereunder, (iii) if all conditions in any such Financing Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but
which conditions are then capable of being satisfied) have been satisfied, the SPAC shall consummate the transactions contemplated by each such Financing Agreement at or prior to the Closing, (iv) the SPAC shall deliver notices to
counterparties to each such Financing Agreement as required by and in the manner set forth therein in order to cause timely funding in advance of the Closing, (v) the SPAC shall enforce its rights under each such Financing Agreement to
cause the applicable Financing Investors to fund the amounts set forth therein and (vi) the SPAC shall provide prompt written notice to the Company if any counterparty to any Financing Agreement notifies the SPAC of any breach of any
representation or other agreement contained in any such Financing Agreement by such counterparty. A Financing may also take the form of an agreement (a “Non-Redemption Agreement”) between the SPAC and/or the Sponsor and a Financing
Investor pursuant to which such Financing Investor agrees to not redeem any SPAC Class A Shares it owns, or agrees to acquire, in connection with the Closing. In connection with any Financing, the SPAC may, at Closing (to the extent
consented to by the Sponsor pursuant to the Sponsor Side Letter), in addition to any securities subscribed for in such Financing, issue (a) an aggregate number of New PubCo Common Shares not to exceed 1,725,000 shares (such total amount so
issued as of Closing, the “Financing Incentive Shares”) and (b) an aggregate number of New PubCo Warrants not to exceed 3,360,000 warrants (such total amount so issued as of Closing, the “Financing Incentive Warrants”), and
such issuance of Financing Incentive Shares and/or Financing Incentive Warrants in connection with any Financing shall be deemed reasonably acceptable to the Company; provided, that, Sponsor forfeits a number of New PubCo Common
Shares and New PubCo Warrants equal to the number of Financing Incentive Shares and Financing Incentive Warrants, respectively, in accordance with the Sponsor Side Letter (in the alternative, the Sponsor may agree to transfer certain New
PubCo Common Shares and/or New PubCo Warrants in connection with a Financing or a Non-Redemption Agreement); provided, further, that nothing set forth herein shall require New PubCo to issue or transfer Financing Incentive Shares or
Financing Incentive Warrants.
(b) Prior to the Closing, the Company shall use its reasonable best efforts to provide to the SPAC, and shall cause each of its
Subsidiaries to use its reasonable best efforts to provide, and shall use its reasonable best efforts to cause its representatives to provide, all cooperation reasonably requested by the SPAC that is customary in connection with completing
a Financing (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company or any of its Subsidiaries), which reasonable best efforts shall include, among other things, the
Company’s (i) furnishing, reasonably promptly following receipt of a request therefore, information regarding the Company (including information to be used in the preparation of one (1) or more information packages regarding the business,
operations, financial projections and prospects of the Company) customary for such financing activities, to the extent reasonably available and subject to disclosure limitation for a public company, (ii) causing the Company’s senior
management and other representatives with appropriate seniority and expertise to participate in a reasonable number of meetings, presentations, due diligence sessions and drafting sessions, (iii) taking all corporate actions, subject to the
occurrence of the Closing, reasonably requested by the SPAC or any financing sources to permit the consummation of such financing activities, and (iv) cooperating with requests for due diligence to the extent customary and reasonable.
6.20 Registration Rights Agreement. At the Closing, New
PubCo, the persons set forth on Exhibit B hereto, the Sponsor and certain Sponsor-related persons will enter into a registration rights agreement substantially in the form of the registration rights agreement attached hereto as Exhibit
E (the “Registration Rights Agreement”).
ARTICLE VII
NO SURVIVAL
7.1 No Survival. None of the representations,
warranties, covenants or agreements set forth herein or in any certificate or instrument delivered by or on behalf of any Party pursuant to this Agreement including any rights arising out of any breach of such representations, warranties,
covenants or agreements, shall survive the Closing (and there shall be no Liability after the Closing in respect thereof), in each case, except for those covenants and agreements that by their terms apply or are to be performed, in each
case, in whole or in part after the Closing (which such covenants shall survive the Closing and continue until fully performed in accordance with their terms). Notwithstanding anything to the contrary contained herein, none of the
provisions set forth herein shall be deemed a waiver by any Party of any right or remedy which such Party may have at Law or in equity in the case of Fraud.
ARTICLE VIII
CLOSING CONDITIONS
8.1 Conditions to Each Party’s Obligations.
The obligations of each Party to consummate the Arrangement, including the Amalgamation and the other transactions described herein, shall be subject to the
satisfaction or written waiver (where permissible) by the Company and the SPAC of the following conditions:
(a) Required SPAC Approvals. The SPAC Shareholder Approval Matters that are submitted to the vote of the SPAC Shareholders at the
SPAC Special Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote of the SPAC Shareholders at the SPAC Special Meeting in accordance with the SPAC’s Organizational Documents, applicable Law and the
Proxy Statement (the “Required SPAC Shareholder Approval”).
(b) Required Company Approvals. The Company Shareholder Approval Matters that are submitted to the vote of the Company Shareholders
at the Company Meeting in accordance with the Company Circular shall have been approved by the requisite vote of Company Shareholders at the Company Meeting in accordance with the Company’s Organizational Documents, applicable Law and the
Company Circular (the “Required Company Shareholder Approval”).
(c) No Orders or Illegality. No Law is in effect that makes the consummation of the Arrangement illegal or otherwise prohibits or
enjoins the Company or the SPAC or its affiliates from consummating the Arrangement and no Law or Order is in effect that makes the consummation of the Arrangement illegal or otherwise prohibits or enjoins the Company or the SPAC or its
affiliates from consummating the Arrangement.
(d) Registration Statement. The Registration Statement shall have been declared effective by the SEC and shall remain effective as
of the Closing, and no stop order or similar order shall be in effect with respect to the Registration Statement.
(e) Stock Exchange Listing. The New PubCo Common Shares shall have been approved for listing on Nasdaq, subject only to official
notice of issuance.
(f) Arrangement Resolution. The Arrangement Resolution has been approved and adopted by the Company Shareholders at the Company
Meeting in accordance with the Interim Order.
(g) Interim Order and Final Order. The Interim Order and the Final Order have each been obtained on terms consistent with this
Agreement, and have not been set aside or modified in a manner unacceptable to either the Company or the SPAC, each acting reasonably, on appeal or otherwise.
(h) SPAC Continuance. The SPAC Continuance shall have been consummated in accordance with Section 2.7.
8.2 Conditions to Obligations of the Company.
In addition to the conditions specified in Section 8.1, the obligations of the Company to consummate the Arrangement, including the Amalgamation and the other
transactions described herein, are subject to the satisfaction or written waiver (by the Company) of the following conditions:
(a) Representations and Warranties.
(i) Each of the representations and warranties of the SPAC and Amalco Sub, as applicable, contained in Section 3.1
(Organization and Standing), Section 3.2 (Authorization; Binding Agreement), Section 3.18 (Finders and Brokers), Section 4.1 (Organization and Standing), Section 4.2 (Authorization; Binding Agreement) and Section 4.10
(Finders and Brokers) (collectively, the “SPAC Specified Representations”) shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth
therein) in all material respects as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, and in such
case, shall be true and correct in all material respects on and as of such earlier date).
(ii) Each of the representations and warranties of the SPAC and Amalco Sub, as applicable, contained in Article III
and Article IV (other than the SPAC Specified Representations and the representations and warranties of the SPAC and Amalco Sub, as applicable, contained in Section 3.5 (Capitalization) and Section 4.5
(Capitalization)) shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) as of the date of this Agreement and on and as of the
Closing Date as if made on the Closing Date (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date), except, in each case,
the failure of such representations and warranties to be so true and correct, has not had a SPAC Material Adverse Effect or Amalco Sub Material Adverse Effect.
(iii) The representations and warranties of the SPAC and Amalco Sub, respectively, contained in Section 3.5
(Capitalization) and Section 4.5 (Capitalization) shall be true and correct, except for any de minimis failures to be so true and correct, as of the date of this Agreement and on and as of the Closing Date as if made on the Closing
Date (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct, except for any de minimis failures to be so true and correct, on and as of such earlier date).
(b) Agreements and Covenants. The SPAC and Amalco Sub shall have performed in all material respects all of their respective
obligations and complied in all material respects with all of their respective agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date, except where compliance with any such
obligation, agreement or covenant has been waived in writing by the Company.
(c) Closing Deliverables.
(i) OFFICER CERTIFICATE. The SPAC shall have delivered to the Company a certificate, dated the Closing Date, signed by
an executive officer of the SPAC in such capacity, certifying as to the satisfaction of the conditions specified in Section 8.2(a) and Section 8.2(b).
(ii) SECRETARY CERTIFICATE. The SPAC shall have delivered to the Company a certificate from its secretary or other
executive officer certifying as to the validity and effectiveness of, and attaching, (A) copies of the SPAC’s Organizational Documents as in effect as of the Closing Date (after giving effect to the SPAC Continuance) and (B) the resolutions
of the SPAC’s Board authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the transactions
contemplated hereby and thereby.
(iii) REGISTRATION RIGHTS AGREEMENT. The Company shall have received from New PubCo duly executed counterparts of the
Registration Rights Agreement, executed by New PubCo.
(iv) RESIGNATIONS. The Company shall have received written resignations, effective as of the Closing, of each of the
directors and officers of the SPAC as necessary to give effect to the requirements of Section 6.15.
8.3 Conditions to Obligations of the SPAC.
In addition to the conditions specified in Section 8.1, the obligations of the SPAC and Amalco Sub to consummate the Arrangement, the SPAC Continuance and the
Arrangement, including the Amalgamation and the other transactions described herein, are subject to the satisfaction or written waiver (by the SPAC) of the following conditions:
(a) Representations and Warranties.
(i) Each of the representations and warranties of the Company contained in Section 5.1 (Organization and
Standing), Section 5.2 (Authorization; Binding Agreement). and Section 5.28 (Finders and Brokers) (collectively, the “Company Specified Representations”) shall be true and correct (without giving
any effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of the date of this Agreement and on and as of the Closing Date immediately prior to the
Effective Time as if made on the Closing Date immediately prior to the Effective Time (except to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct in all material
respects on and as of such earlier date).
(ii) Each of the representations and warranties of the Company contained in Article V (other than the Company Specified
Representations and the representations and warranties of the Company contained in Section 5.5 (Capitalization)) shall be true and correct (without giving any effect to any limitation as to “materiality” or “Material Adverse
Effect” or any similar limitation set forth therein) as of the date of this Agreement and on and as of the Closing Date immediately prior to the Effective Time as if made on the Closing Date immediately prior to the Effective Time (except
to the extent such representations and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date), except, in each case, the failure of such representations and warranties to
be so true and correct, has not had a Company Material Adverse Effect.
(iii) The representations and warranties of the Company contained in Section 5.5 (Capitalization) shall be
true and correct, except for any de minimis failures to be so true and correct, as of the date of this Agreement and on and as of the Closing Date as if made on the Closing Date (except to the extent such representations and warranties
expressly relate to an earlier date, and in such case, shall be true and correct, except for any de minimis failures to be so true and correct, on and as of such earlier date).
(b) Agreements and Covenants. The Company shall have performed in all material respects all of its obligations and complied in all
material respects with all of its agreements and covenants under this Agreement, in each case to be performed or complied with by such person on or prior to the Closing Date, except where compliance with any such obligation, agreement or
covenant has been waived in writing by the SPAC.
(c) No Material Adverse Effect. No Company Material Adverse Effect shall have occurred since the date of this Agreement which is
continuing and uncured.
(d) Key Employees. Each of the Key Employees shall be actively employed (or, solely in the case of David Oliver, actively engaged
as an individual independent contractor and anticipated to be converted to employee status) with the Company as of the Closing Date.
(e) Closing Deliverables.
(i) OFFICER CERTIFICATE. The SPAC shall have received a certificate from the Company, dated as the Closing Date,
signed by an executive officer of the Company in such capacity, certifying as to the satisfaction of the conditions specified in Section 8.2(a), Section 8.2(b), and Section 8.2(c).
(ii) SECRETARY CERTIFICATE. The Company shall have delivered to the SPAC a certificate executed by the Company’s secretary
certifying as to the validity and effectiveness of, and attaching, (A) copies of the Company Organizational Documents as in effect as of the Closing Date (B) the requisite resolutions of the Company’s Board authorizing and approving the
execution, delivery and performance of this Agreement and each Ancillary Document to which the Company is or is required to be a party or bound, and the consummation of the Amalgamation and the other transactions contemplated hereby and
thereby.
(iii) REGISTRATION RIGHTS AGREEMENT. The SPAC shall have received from the Company duly executed counterparts of the
Registration Rights Agreement, executed by each Company Securityholder set forth on Schedule B.
(iv) COMPANY SUPPORT & LOCK-UP AGREEMENT. The Core Company Securityholders shall be party to a Company Support &
Lock-Up Agreement that remains in full force and effect.
(v) KEY EMPLOYMENT AGREEMENTS. The SPAC shall have received from the Company duly executed counterparts of all Key
Employment Agreements, each in full force and effect as of the Closing Date.
(vi) FIRPTA TAX CERTIFICATE. Prior to the Closing, the Company shall deliver to New PubCo a properly executed certification,
dated as of the Closing Date, that meets the requirements of U.S. Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), certifying that the Company is not and has not been a “United States real property holding corporation” (as
defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, together with the required notice to the IRS and written authorization for New PubCo to deliver such notice and a copy
of such certification to the IRS on behalf of the Company upon the Closing.
8.4 Frustration of Conditions. Notwithstanding anything
contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was caused by the failure of such Party
or its Affiliates (or with respect to the Company or any Company Shareholder) to comply with or perform any of its covenants or obligations set forth in this Agreement.
ARTICLE IX
TERMINATION AND EXPENSES
9.1 Termination.
This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to the Closing as follows:
(a) by mutual written consent of the SPAC and the Company;
(b) by written notice by either the SPAC or the Company, if:
(i) the Company Meeting is duly convened and held (including any adjournment or postponement thereof), the Company
Shareholders have duly voted, and the Required Company Shareholder Approval was not obtained;
(ii) the SPAC Special Meeting is held (including any adjournment or postponement thereof) and has concluded, the SPAC
Shareholders have duly voted, and the Required SPAC Shareholder Approval was not obtained;
(iii) after the date of this Agreement, any Law is enacted, made, enforced or amended, as applicable, that makes the
consummation of the Arrangement illegal or otherwise prohibits or enjoins the Company or the SPAC or its affiliates from consummating the Arrangement, and such Law has, if applicable, become final and non-appealable, provided, that
the Party seeking to terminate this Agreement pursuant to this Section 9.1(b)(iii) has used its commercially reasonable efforts to, as applicable, appeal or overturn such Law or otherwise have it lifted or rendered non-applicable in
respect of the Arrangement; or
(iv) the Effective Time does not occur on or prior to June 12, 2024, subject to a one-time thirty (30)-day extension upon
written agreement of the Parties (provided, that, if the Registration Statement shall not have been declared effective by the SEC as of the Outside Date, the SPAC shall be entitled to one sixty (60)-day extension upon notice to the Company)
(the “Outside Date”), provided, that a Party may not terminate this Agreement pursuant to this Section 9.1(b)(iv) if the failure of the Effective Time to so occur has been caused by, or is a result of, a breach by
such Party of any of its representations or warranties or the failure of such Party to perform any of its covenants or agreements under this Agreement; or
(c) by written notice by the Company to the SPAC, if:
(i) there has been a breach by the SPAC or Amalco Sub, or if any representation or warranty of the SPAC or Amalco Sub,
shall have become untrue or inaccurate, in any case which would result in a failure of a condition set forth in Section 8.2(a) or Section 8.2(b) to be satisfied (treating the Closing Date for such purposes as the date of
this Agreement or, if later, the date of such breach), and the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such breach or inaccuracy is
provided to the SPAC or Amalco Sub or (B) the Outside Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i) if at such time the Company is in material
uncured breach of this Agreement; or
(ii) prior to the approval by the Company Shareholders of the Arrangement Resolution,
(A) the Company Board makes a Change in Recommendation in accordance with Section 6.6(d); or
(B) the Company enters into a written agreement with respect to a Superior Proposal in accordance with Section 6.6
and provided, that the Company is then in compliance with Section 6.6; or
(d) by written notice by the SPAC to Company, if:
(i) there has been a breach by the Company, or if any representation or warranty of the Company, shall have become
untrue or inaccurate, in any case which would result in a failure of a condition set forth in Section 8.3(a) or Section 8.3(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if
later, the date of such breach), and the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) thirty (30) Business Days after written notice of such breach or inaccuracy is provided to the Company or
(B) the Outside Date; provided, that the SPAC shall not have the right to terminate this Agreement pursuant to this Section 9.1(d)(i) if at such time the SPAC or Amalco Sub is in material uncured breach of this Agreement;
(ii) prior to the approval by the Company Shareholders of the Arrangement Resolution, (A) the disinterested members of
the Company Board fail to unanimously recommend, withdraws, amends, modifies or qualifies in a manner that has substantially the same effect, or fails to publicly reaffirm within five (5) Business Days after having been requested in writing
to do so by the SPAC, acting reasonably, the approval or recommendation of the Arrangement or the Arrangement Resolution (a “Change in Recommendation”) (it being understood that publicly taking no position or a neutral position with
respect to an Acquisition Proposal for a period of no more than five (5) Business Days after the formal announcement thereof shall not be considered a Change in Recommendation) unless the Company provides a Superior Proposal Notice to the
SPAC within such timeframe, in which case the Company will have until the end of the Matching Period to reaffirm the Company Board Recommendation, or (B) the Company Board approves, recommends or authorizes the Company to enter into a
written agreement concerning a Superior Proposal; or
(iii) if there has been a Company Material Adverse Effect following the date of this Agreement which is uncured for at
least thirty (30) Business Days after written notice of such Company Material Adverse Effect is provided by the SPAC to the Company.
9.2 Effect of Termination. This Agreement may only be
terminated in the circumstances described in Section 9.1 and pursuant to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the
basis for such termination, including the provision of Section 9.1 under which such termination is made. In the event of the valid termination of this Agreement pursuant to Section
9.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of their respective Representatives, and all rights and obligations of
each Party shall cease, except: (i) Section 6.13 (Public Announcements) this Section 9.2 (Effect of Termination), Section 9.3 (Fees and Expenses), Section 10.1 (Waiver of Claims Against Trust), Article XI (Miscellaneous) and Section 11.3 (Third Parties)
shall survive the termination of this Agreement, and (ii) nothing herein shall relieve any Party from Liability following the termination of this Agreement for any willful breach of any representation, warranty, covenant or obligation
under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above, subject to Section 10.1). Without limiting the foregoing, and except as provided in Section 9.3 and this Section 9.2 (but subject to Section
10.1) and subject to the right to seek injunctions, specific performance or other equitable relief in accordance with Section 11.6, the Parties’ sole right prior to the Closing with respect to any breach of any representation, warranty, covenant or other agreement contained in this Agreement by another Party or with respect to the transactions contemplated by
this Agreement shall be the right, if applicable, to terminate this Agreement pursuant to Section 9.1.
9.3 Fees and Expenses.
All Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Company; provided, however, that:
(a) subject to Sections 9.3(b) through 9.3(d), the SPAC shall be responsible for (i) all Expenses relating to the SPAC’s
ordinary course Exchange Act reporting, (ii) all Expenses relating to monthly payments of the Trust Account, and (iii) expenses related to the Extension (the “SPAC Extension Expenses”) (collectively, the “SPAC Specified Expenses”);
(b) if this Agreement is terminated (i) by the Parties pursuant to Section 9.1(a), (ii) by the SPAC or the Company pursuant to
Section 9.1(b)(ii), Section 9.1(b)(iii) or Section 9.1(b)(iv), or (iii) by the Company pursuant to Section 9.1(c)(i), all Expenses incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the Party incurring such Expenses, and no Party shall have any liability to any other Party for any other expenses or fees;
(c) if this Agreement is terminated (i) by the Company or the SPAC pursuant to Section 9.1(b)(i) or the Company pursuant to Section
9.1(c)(ii) or (ii) by the SPAC pursuant to Section 9.1(d), the Company shall pay to the SPAC, by wire transfer of immediately available funds within thirty (30) Business Days after such termination, all Expenses incurred by
the SPAC in connection with this Agreement and the transactions contemplated hereby up to the date of such termination (including (i) SPAC Specified Expenses incurred in connection with the transactions, including SPAC Extension Expenses
and (ii) any Excise Tax Liability provided that, solely with respect to Excise Tax Liability, notice of such termination pursuant to this paragraph (c) is provided after December 1, 2023); and
(d) if the transactions contemplated by this Agreement are consummated, New PubCo shall bear all of the Expenses of the Parties (including
the SPAC Specified Expenses and any Excise Tax Liability); provided, however, that this Section 9.3(d) shall not be construed to alter the application of the Trust Account proceeds as set forth in Section 6.18.
As used in this Agreement, “Expenses” shall include only those out-of-pocket expenses of the type and with parties set forth on Schedule 9.3(d) or as
mutually agreed upon by the Company and the SPAC (such agreement not to be unreasonably withheld, conditioned, or delayed by either the Company or the SPAC).
All deferred expenses (including fees or commissions payable to the IPO Underwriters and any legal fees) of the IPO due upon consummation of a Business Combination
shall constitute Expenses of New PubCo, which Expenses will be payable by New PubCo in accordance with Section 9.3(d) above.
The Company acknowledges and agrees that the provisions of Section 9.3 are an integral part of the transactions contemplated by this Agreement, and that,
without such provisions, the SPAC would not have entered into this Agreement. If the Company fails to pay in a timely manner the amounts due pursuant to Section 9.3 and, in order to obtain such payment, the SPAC makes a claim
against the Company that results in a judgment, the Company party shall pay to the SPAC its reasonable costs and expenses, including reasonable attorneys’ fees and expenses, incurred or accrued in connection with such claim.
ARTICLE X
WAIVERS AND RELEASES
10.1 Waiver of Claims Against Trust. Reference is made to
the IPO Prospectus. The Company hereby represents and warrants that it has read the IPO Prospectus other than SEC Reports, the SPAC’s Organizational Documents, and the Trust Agreement and understands that the SPAC has established the
Trust Account containing the proceeds of the IPO and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the SPAC’s public shareholders (the “SPAC
Public Shareholders”) and that the SPAC may disburse monies from the Trust Account only as set forth in the Trust Agreement. For and in consideration of the SPAC entering into this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Company hereby agrees on behalf of itself and its Affiliates that, notwithstanding anything to the contrary in this Agreement, none of the Company nor any of
its respective Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account
(including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any proposed or actual business relationship between the SPAC or any of its
Representatives, on the one hand, and the Company or any of its respective Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal
liability (collectively, the “Released Claims”). The Company on behalf of itself and its Affiliates hereby irrevocably waives any Released Claims that any such Party or any of its Affiliates may have against the Trust Account
(including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, Contracts or agreements with the SPAC or its Representatives and will not seek recourse against the Trust Account (including
any distributions therefrom) for any reason whatsoever (including for an alleged breach of this Agreement or any other agreement with the SPAC or its Affiliates); provided, however, that the foregoing waiver will not limit
or prohibit the Company or its Affiliates from pursuing a claim against the SPAC, Amalco Sub or any other Person for legal relief against monies or other assets of the SPAC or Amalco Sub held outside of the Trust Account of for specific
performance or other equitable relief in connection with the transactions contemplated by this Agreement. The Company agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by the
SPAC and its Affiliates to induce the SPAC to enter in this Agreement, and the Company further intends and understands such waiver to be valid, binding and enforceable against such Party and each of its Affiliates under applicable Law. To
the extent that the Company or any of its respective Affiliates commences any Action based upon, in connection with, relating to or arising out of any matter relating to the SPAC or its Representatives, which Proceeding seeks, in whole or
in part, monetary relief against the SPAC or its Representatives, the Company hereby acknowledges and agrees that it and its Affiliates’ sole remedy shall be against funds held outside of the Trust Account and that such claim shall not
permit such Party or any of its Affiliates (or any Person claiming on any of their behalf or in lieu of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein.
ARTICLE XI
MISCELLANEOUS
11.1 Notices. All notices, consents, waivers and other
communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by electronic means (including e-mail), with affirmative confirmation of receipt, (c) one (1) Business Day after
being sent, if sent by reputable, nationally recognized overnight courier service or (d) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the
applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
If to the SPAC or Amalco Sub at or
prior to the Closing, or to the
Sponsor, to:
Focus Impact Acquisition Corp.
1345 Avenue of the Americas
New York, NY 10105
Attn: Carl Stanton
E-mail: cstanton@focus-impact.com
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with a copy (which will not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 02210022
Attn: Lauren M. Colasacco, P.C.,
Peter Seligson, P.C.
Email: lauren.colasacco@kirkland.com;
peter.seligson@kirkland.com
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If to the Company, to:
DevvStream Holdings Inc.
2133-1177 West Hastings Street
Vancouver, BC V6E 2K3
Attention: Sunny Trinh
Email: sunny@devvstream.com
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with a copy (which will not constitute notice) to:
Morrison & Foerster LLP
12531 High Bluff Drive
San Diego, CA 92130
Attention: Shai Kalansky; Omar Pringle;
Justin Salon
Email: skalansky@mofo.com; opringle@mofo.com; justinsalon@mofo.com
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If to Amalco and, following the
Closing, the SPAC:
c/o DevvStream Holdings Inc.
2133-1177 West Hastings Street
Vancouver, BC V6E 2K3
Attention: Carl Stanton, Sunny Trinh
Email: cstanton@focus-impact.com,
sunny@devvstream.com
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with a copy (which will not constitute notice) to:
Morrison & Foerster LLP
12531 High Bluff Drive
San Diego, CA 92130
Attention: Shai Kalansky; Omar Pringle;
Justin Salon
Email: skalansky@mofo.com;
opringle@mofo.com; justinsalon@mofo.com
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Lauren M. Colasacco, P.C.;
Peter Seligson, P.C.
Email: lauren.colasacco@kirkland.com;
peter.seligson@kirkland.com
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11.2 Binding Effect; Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written
consent of the SPAC and the Company, and any assignment without such consent shall be null and void; provided, that the no such assignment shall relieve the assigning Party of its obligations hereunder.
11.3 Third Parties. Except for the rights of (a) the
D&O Indemnified Persons set forth in Section 6.17, which the Parties acknowledge and agree are express third party beneficiaries of this Agreement, nothing contained in this
Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party or
thereto or a successor or permitted assign of such a Party. Notwithstanding anything to the contrary herein, the Sponsor shall be an express third-party beneficiary of Section 6.13,
this Section 11.3, and Section 11.8.
11.4 Governing Law; Jurisdiction. The Law of the State of
Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions, disputes or other matters in connection with the construction, interpretation,
validity and enforceability hereof, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any
other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. Each of the Parties submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or if
such court declines jurisdiction, then to the Federal District Court for the District of Delaware, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and
determined in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts.
11.5 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THIS AGREEMENT. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT
THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
11.6 Remedies; Specific Performance. Except as otherwise
expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will
not preclude the exercise of any other remedy. The failure on the part of any Party to exercise, and no delay in exercising, any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of such right, power, or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. Each Party acknowledges that the rights of each Party to consummate the transactions
contemplated hereby are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages would be inadequate and the non-breaching Parties would not have adequate remedy at law, and agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be
entitled to an injunction or restraining order to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages
would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction,
specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other Parties have an adequate remedy at Law or an award of specific performance is not an appropriate
remedy for any reason at Law or equity.
11.7 Severability. Whenever possible, each provision
hereof shall be interpreted in such manner as to be effective and valid under applicable Law. In case any provision in this Agreement shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, such provision
shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of
such invalid, illegal or unenforceable provision.
11.8 Amendment and Waiver. No amendment of any provision
hereof shall be valid unless the same shall be in writing and signed by (a) the SPAC and the Company prior to the Closing and (b) New PubCo and the Sponsor after the Closing. No waiver of any provision or condition hereof shall be valid
unless the same shall be in writing and signed by the Party against which such waiver is to be enforced. No waiver by any Party of any default, breach of representation or warranty or breach of covenant hereunder, whether intentional or
not, shall be deemed to extend to any other, prior or subsequent default or breach or affect in any way any rights arising by virtue of any other, prior or subsequent such occurrence.
11.9 No Recourse. Notwithstanding anything that may be
expressed or implied herein (except in the case of the immediately succeeding sentence) or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or
limited liability company, each Party hereto, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder and that it has no rights of
recovery hereunder against, and no recourse hereunder or under any documents, agreements, or instruments delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made in connection herewith or
therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative or employee of any Party (or any of their successors or
permitted assignees), against any former, current, or future general or limited partner, manager, stockholder or member of any Party (or any of their successors or permitted assignees) or any Affiliate thereof or against any former,
current or future director, officer, agent, employee, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, stockholder, manager or member of any of the foregoing, but in
each case not including the Parties (each, but excluding for the avoidance of doubt, the Parties, a “Non-Party Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort,
Contract or otherwise) by or on behalf of such Party against the Non-Party Affiliates, by the enforcement of any assessment or by any Proceeding, or by virtue of any statute, regulation or other applicable Law, or otherwise; it being
agreed and acknowledged that no personal Liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations of the applicable Party under this Agreement or the
transactions contemplated hereby, under any documents or instruments delivered contemporaneously herewith, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any claim (whether in
tort, Contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation. Notwithstanding the forgoing, a Non-Party Affiliate may have obligations under any documents, agreements, or instruments delivered
contemporaneously herewith or otherwise contemplated hereby if such Non-Party Affiliate is party to such document, agreement or instrument. Except to the extent otherwise set forth in, and subject in all cases to the terms and conditions
of and limitations herein, this Agreement may only be enforced against, and any claim or cause of action of any kind based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance hereof, may only
be brought against the entities that are named as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Party Affiliate is intended as a third-party beneficiary of this
Section 11.9.
11.10 Entire Agreement. This Agreement and the documents or
instruments referred to herein, including any exhibits and schedules attached hereto, which exhibits and schedules are incorporated herein by reference, together with the Ancillary Documents, contain the entire agreement and understanding
among the Parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions, whether written or oral, relating to such subject matter in any way. The
Parties have voluntarily agreed to define their rights and Liabilities with respect to the transactions contemplated hereby exclusively pursuant to the express terms and provisions hereof, and the Parties disclaim that they are owed any
duties or are entitled to any remedies not set forth herein. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with
another Person that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction.
11.11 Interpretation. The table of contents and the Article
and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement. Any capitalized terms
used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth herein. In this Agreement, unless the context otherwise requires: (a) any pronoun used shall include the corresponding
masculine, feminine or neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise defined in this Agreement or any
Ancillary Document has the meaning assigned to such term in accordance with GAAP or IFRS; (d) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding
such term and shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a
whole and not to any particular Section or other subdivision of this Agreement; (f) the word “extent” in the phrase “to the extent” (or similar phrases) shall mean the degree to which a subject or other thing extends, and such phrase
shall not mean simply “if”; (g) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (h) the term “or” means “and/or”; (i) any reference to the term
“ordinary course” or “ordinary course of business” shall be deemed in each case to be followed by the words “consistent with past practice”; (j) any agreement, instrument, insurance policy, Law or Order defined or referred to herein or in
any agreement or instrument that is referred to herein means such agreement, instrument, insurance policy, Law or Order as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes, regulations, rules or Orders) by succession of comparable successor statutes, regulations, rules or Orders and references to all attachments thereto and instruments incorporated therein; (k) except
as otherwise indicated, all references in this Agreement to the words “Section,” “Article,” “Schedule” and “Exhibit” are intended to refer to Sections, Articles, Schedules and Exhibits to this Agreement; and (l) the term “Dollars” or “$”
means United States dollars. Any reference in this Agreement to any Contract (including this Agreement) mean such Contract as amended, restated, supplemented or modified from time to time in accordance with the terms thereof; provided,
that with respect to any Contract listed (or required to be listed) on the disclosure schedules, all material amendments thereto (for the avoidance, excluding in either case any purchase orders, work orders or statements of work) must
also be listed on the appropriate section of the applicable schedule and disclosed. Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing body and any reference in this Agreement to a
Person’s officers shall include any Person filling a substantially similar position for such Person. Any reference in this Agreement or any Ancillary Document to a Person’s shareholders or shareholders shall include any applicable owners
of the equity interests of such Person, in whatever form. The Parties and their respective counsel have reviewed and negotiated this Agreement as the joint agreement and understanding of the Parties, and the language used herein shall be
deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person. Any information or materials shall be deemed provided, made available or delivered to
the SPAC if such information or materials have been uploaded to the electronic data room maintained by the Company and its financial advisor on the “DevvStream Confidential Data Room” online data site hosted by Microsoft at
https://www.microsoft.com/en-us/microsoft-365/sharepoint/collaboration?ms.officeurl=sharepoint&rtc=1 for purposes of the transactions contemplated hereby (the “Data Room”) or otherwise provided to the SPAC and its
representatives (including counsel) via e-mail, in each case with respect to the representations and warranties contained in Article IV and Article V, at least one (1) Business Day prior to the Effective Date.
11.12 Counterparts. This Agreement and each Ancillary
Document may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same agreement.
11.13 Conflicts and Privilege.
(a) The SPAC and the Company, on behalf of their respective successors and assigns (including, after the Closing, Amalco), hereby agree
that, in the event a dispute with respect to this Agreement, any Ancillary Documents or the transactions contemplated hereby or thereby arises after the Closing between or among (x) the Sponsor, Amalco, shareholders or holders of other
equity interests of the SPAC or the Sponsor, and/or any of their respective directors, members, partners, officers, employees or Affiliates (other than Amalco) (collectively, the “SPAC Group”), on the one hand, and (y) the Company
and/or any member of the New Company Group (as defined below), on the other hand, any legal counsel, including K&E, that represented the SPAC and/or the Sponsor prior to the Closing may represent the Sponsor and/or any other member of
SPAC Group, in such dispute even though the interests of such Persons may be directly adverse to Amalco, and even though such counsel may have represented the SPAC in a matter substantially related to such dispute, or may be handling
ongoing matters for Amalco and/or the Sponsor. The SPAC and the Company, on behalf of their respective successors and assigns, further agree that, as to all legally privileged communications prior to the Closing (made in connection with the
negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the transactions contemplated hereby or thereby) between or among the
SPAC, the Sponsor and/or any other member of SPAC Group, on the one hand, and K&E, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Amalgamation and belong to Sponsor after the
Closing, and shall not pass to or be claimed or controlled by Amalco. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with the SPAC or the Sponsor under a
confidentiality agreement shall remain the privileged communications or information of the Company and shall not be used by the SPAC Group against the New Company Group, as subsequently defined, in connection with any dispute among the
parties.
(b) The SPAC and the Company, on behalf of their respective successors and assigns (including, after the Closing, Amalco), hereby agree
that, in the event a dispute with respect to this Agreement, any Ancillary Documents or the transactions contemplated hereby or thereby arises after the Closing between or among (x) the shareholders or holders of other equity interests of
the Company, Amalco and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “New Company Group”), on the one hand, and (y) any member of SPAC Group, on the other hand, any
legal counsel, including MoFo that represented the Company prior to the Closing may represent any member of the New Company Group in such dispute even though the interests of such Persons may be directly adverse to SPAC Group, and even
though such counsel may have represented the SPAC and/or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for Amalco, and further agree that, as to all legally privileged communications prior
to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Documents or the transactions
contemplated hereby or thereby) between or among the Company and/or any member of the New Company Group, on the one hand, and MoFo, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the
Amalgamation and belong to the New Company Group after the Closing, and shall not pass to or be claimed or controlled by Amalco. Notwithstanding the foregoing, any privileged communications or information shared by the SPAC prior to the
Closing with the Company under a confidentiality agreement shall remain the privileged communications or information of the SPAC, and controlled by Sponsor, and shall not be used by the New Company Group against the SPAC Group in connection
with any dispute among the parties.
ARTICLE XII
DEFINITIONS
12.1 Certain Definitions.
For purpose of this Agreement, the following capitalized terms have the following meanings:
“ABCA” has the meaning specified in the Recitals.
“Acquisition Proposal” has the meaning specified in Section 6.6.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person.
“Aggregate Exercise Price” means the aggregate exercise price of all In-the-Money Options valued in U.S. Dollars calculated using the exchange rate published in
the Wall Street Journal, United States Eastern Edition, under the heading “Currency Trading” on the date two (2) Business Days prior to the Effective Time, whether vested or unvested, and all Company Warrants, in each case, outstanding
immediately prior to the Effective Time or exercised in cash (and included in such calculation solely to the extent the amount of such exercise price was actually received in cash by the Company) after the date hereof and prior to the
Effective Time.
“Agreement” has the meaning specified in the Preamble hereto.
“Alternative Transaction” has the meaning specified in Section 6.6.
“Amalco” has the meaning specified in the Recitals hereto.
“Amalco Sub” has the meaning specified in the Preamble hereto.
“Amalco Sub Material Adverse Effect” has the meaning specified in Section 4.3.
“Amalgamation” has the meaning specified in the Recitals hereto.
“Amalgamation Consideration Value” means the Equity Value plus the Aggregate Exercise Price.
“Ancillary Documents” means each agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates, and instruments to be
executed or delivered by any of the Parties in connection with or pursuant to this Agreement.
“Anti-Corruption Laws” means all U.S. and non-U.S. Laws relating to the prevention of corruption, money laundering, and bribery, including the U.S. Foreign
Corrupt Practices Act of 1977, as amended, and the UK Bribery Act of 2010.
“Arrangement” has the meaning specified in the Recitals hereto.
“Arrangement Resolution” means the special resolution approving the Plan of Arrangement to be considered at the Company Meeting by Company Shareholders,
substantially in the form set forth in Exhibit F.
“Assets” has the meaning specified in Section 5.18.
“BCBCA” has the meaning specified in the Recitals hereto.
“Benefit Plan” means each “employee benefit plan” (as such term is defined in ERISA § 3(3), whether or not subject to ERISA), each deferred compensation,
compensation, incentive, equity purchase or other equity or equity-based compensation, phantom equity, severance, termination pay, salary continuation, retention, stay, post-termination, holiday, vacation, bonus, commission, hospitalization
or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, savings, fringe benefit, retirement or other similar plan, program, agreement, Contract, commitment, policy or arrangement, and each
other compensation or benefit plan, program, agreement, whether formal or informal, whether written or unwritten and whether legally binding or not.
“Board” means the board of directors of an entity as constituted from time to time.
“Book-Entry Shares” has the meaning specified in Section 2.14(b).
“Business Combination” has the meaning specified in the Recitals hereto.
“Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in Delaware are authorized to close for
business, excluding as a result of “stay at home,” “shelter-in-place,” “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any Governmental Authority so
long as the electronic funds transfer systems, including for wire transfers, of commercially banking institutions in Delaware are generally open for use by customers on such day.
“Canadian Certifications” has the meaning specified in Section 5.31.
“Canadian Securities Laws” has the meaning specified in Section 5.31.
“Carbon Credit” means an instrument, benefit, offset, allowance or other unit that represents a verified reduction or removal of one metric tonne of CO2
equivalent.
“Carbon Standard” means, with respect to a Carbon Credit, the program or standard administered by a mandatory or voluntary domestic or international greenhouse
gas program, certification, scheme or protocol, that certifies such Carbon Credit as a verified reduction or removal of one metric tonne of CO2 equivalent, including its methodologies and published guidance.
“Cboe Canada” means the Neo Exchange Inc., operating as Cboe Canada.
“CDS” has the meaning specified in Section 2.14(b).
“Certificate of Incorporation” means the certificate of incorporation or articles of incorporation, as applicable, of a corporation.
“Certificates” has the meaning specified in Section 2.14(b).
“Change in Recommendation” has the meaning specified in Section 9.1(d)(ii).
“Closing” has the meaning specified in Section 1.1
“Closing Date” has the meaning specified in Section 1.1.
“Closing Filing” has the meaning specified in Section 6.13(b).
“Closing Press Release” has the meaning specified in Section 6.13(b).
“Code” means the U.S. Internal Revenue Code of 1986, as amended, including any valid treasury regulation promulgated thereunder.
“Common Amalgamation Consideration” means, with respect to the Company Securities, a number of New PubCo Common Shares equal to the Amalgamation Consideration
Value divided by $10.20.
“Common Conversion Ratio” means, in respect of a Company Share, the number equal to (a) the Common Amalgamation Consideration divided by (b) the Fully
Diluted Common Shares Outstanding.
“Company” has the meaning specified in the Preamble hereto.
“Company Benefit Plan” has the meaning specified in Section 5.20(a).
“Company Board Recommendation” has the meaning specified in Section 2.4(b).
“Company Certificate” has the meaning specified in Section 2.14(d).
“Company Circular” means the notice of the Company Meeting and accompanying management information circular, including all schedules, appendices and exhibits to,
and information incorporated by reference in, such management information circular, to be sent to Company Shareholders in connection with the Company Meeting and the Arrangement, as amended, supplemented or otherwise modified from time to
time in accordance with the terms of this Agreement.
“Company Convertible Notes” means those certain Company Convertible Notes to be issued by the Company during the Interim Period in accordance with Section 6.2
pursuant to the Company Convertible Notes Subscription Agreements.
“Company Convertible Notes Subscription Agreements” means those certain Convertible Note Subscription Agreements to be entered into by the Company during the
Interim Period in accordance with Section 6.2 with respect to the Company Convertible Notes.
“Company Convertible Securities” means, collectively, any securities convertible into or exchangeable for, any shares, capital stock or other equity of or other
voting interests in the Company, including the Company Option and Company Warrants.
“Company Disclosure Schedules” has the meaning specified in Article V.
“Company Equity Awards” means, collectively, each Company Option and each Company RSU.
“Company Equity Incentive Plan” means the 2022 Equity Incentive Plan of DevvStream Holdings Inc., as amended and restated from time to time, and the 2022
Non-Qualified Stock Option Plan of DevvStream Inc., as amended and restated from time to time.
“Company Fairness Opinion” has the meaning specified in Section 5.32.
“Company Financial Statements” has the meaning specified in Section 5.7(a).
“Company IP Agreements” means including (a) Contracts under which the Company has granted or agreed to grant to any other Person any license, covenant, release,
immunity or other right that applies to or any Owned IP and (b) all Company IP Licenses.
“Company IP Licenses” has the meaning specified in Section 5.14(b).
“Company Material Adverse Effect” has the meaning specified in Section 5.3.
“Company Material Contract” has the meaning specified in Section 5.13(a).
“Company Meeting” means the special meeting of Company Shareholders, including any adjournment or postponement thereof in accordance with the terms of this
Agreement, to be called and held in accordance with the Interim Order to consider the Arrangement Resolution and for any other purpose as may be set forth in the Company Circular and agreed to in writing by the SPAC, acting reasonably.
“Company Option ITM Amount” has the meaning specified in Section 2.12(c)(i).
“Company Options” means each option (whether vested or unvested) to purchase Company Shares granted under a Company Equity Incentive Plan.
“Company Permits” has the meaning specified in Section 5.10.
“Company Personal Property Leases” has the meaning specified in Section 5.17.
“Company Products” means each of the products, services, and Software (including mobile phone and table applications) that have been or are currently being
developed, marketed, distributed, licensed, sold, offered, or provided by or on behalf of any of the Company, including any products or services (a) made available through or as part of the Company website or (b) derived from or
incorporating any Company data.
“Company Registered IP” has the meaning specified in Section 5.14(a).
“Company RSUs” means each restricted stock unit representing the right to receive payment in Company Shares, granted under a restricted stock unit award
agreement.
“Company Securities” means, collectively, the Company Shares, the Company Options, and the Company Warrants.
“Company Securityholders” means, collectively, the holders of Company Securities prior to the Effective Time.
“Company Shareholder Approval Matters” means approval of the Arrangement Resolution.
“Company Shareholders” means, collectively, the holders of Company Shares prior to the Effective Time.
“Company Shares” means the Multiple Voting Company Shares and the Subordinated Voting Company Shares.
“Company Specified Representations” has the meaning specified in Section 8.3(a)(i).
“Company Support & Lock-Up Agreements” has the meaning specified in the Recitals hereto.
“Company Systems” means all computer firmware, hardware, software, and computer or information technology systems or infrastructure, networks, and data or
information contained therein or transmitted thereby, and other similar items of automated, computerized, or software systems owned, licensed, used or relied upon by the Company or any of its Subsidiaries in the conduct of its business,
including the Company Products.
“Company Warrants” means the 9,787,343 outstanding common share purchase warrants of the Company, which are exercisable for up to 9,787,343 Company Shares.
“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of February 21, 2023, by and between the Company and SPAC.
“Consent” means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority or any other
Person.
“Contracts” means all contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses (and all other
contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments or obligations of any kind, written or oral (including any amendments and other modifications thereto).
“Control” means the possession, directly or indirectly, of the power to direct the management and policies of a
Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise.
“Converted Option” has the meaning specified in Section 2.12(c)(i).
“Converted RSU” has the meaning specified in Section 2.12(c)(ii).
“Converted Warrant” has the meaning specified in Section 2.12(d).
“Convertible Note Shares” has the meaning specified in Section 2.12(f).
“Copyleft License” means any license that requires, as a condition of use, modification or distribution of Software subject to such license, that such Software,
or other Software or other Intellectual Property incorporated into, derived from, used or distributed with such Software (a) in the case of Software, be made available or distributed in a form other than binary (e.g., in source code form),
(b) be licensed for the purpose of preparing derivative works, (c) be licensed under terms that allow Company Products or portions thereof or interfaces therefor to be reverse engineered, reverse assembled or disassembled (other than by
operation of legal requirement) or (d) be redistributable at no license fee.
“Copyrights” means any works of authorship, mask works and all copyrights therein, including all renewals and extensions, copyright registrations and
applications for registration and renewal, and non-registered copyrights.
“Core Company Securityholder” has the meaning specified in the Recitals hereto.
“Court” means the Supreme Court of British Columbia, or other court as applicable.
“D&O Indemnified Persons” has the meaning specified in Section 6.17(a).
“Data Room” has the meaning specified in Section 11.11.
“DGCL” has the meaning specified in the Recitals hereto.
“Dissent Rights” means the rights of dissent in respect of the Arrangement Resolution described in the Plan of Arrangement and the BCBCA.
“DTC” has the meaning specified in Section 2.14(b).
“Effective Date” has the meaning ascribed thereto in the Plan of Arrangement, which shall be the Closing Date.
“Effective Time” has the meaning ascribed thereto in the Plan of Arrangement, which shall occur on the Closing Date.
“Effective Time Outstanding Company Shares” has the meaning specified in Section 2.12(a).
“Enforceability Exceptions” has the meaning specified in Section 3.2.
“Environmental Law” means any Law in any way relating to (a) public or worker health or safety, (b) pollution or the protection, preservation or restoration of
the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use,
storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, Release or disposal of Hazardous Materials.
“Environmental Liabilities” means, in respect of any Person, all material Liabilities under Environmental Law, including as a result of any claim or demand by
any other Person or in response to any violation of Environmental Law.
“Equity Value” means One Hundred Forty-Five Million Dollars ($145,000,000).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Agent” has the meaning specified in Section 2.14(a).
“Excise Tax” means the 1% excise tax imposed on certain repurchases of stock of publicly traded U.S. and certain non-U.S. corporations made after December 31,
2022, as enacted under the Inflation Reduction Act of 2022 under Section 4501 of the Code.
“Excise Tax Liability” means any cost, expense, liability or payment obligation of the SPAC in respect of any Excise Tax, but excluding any Taxes imposed as a
result of the Company reimbursing the SPAC for any such Excise Tax.
“Ex-Im Laws” means all U.S. and non-U.S. Laws relating to export, reexport, transfer, and import controls, including the Export Administration Regulations, the
customs and import Laws administered by U.S. Customs and Border Protection, and the EU Dual Use Regulation.
“Expenses” has the meaning specified in Section 9.3.
“Extension” has the meaning specified in Section 6.3.
“Federal Securities Laws” has the meaning specified in Section 6.7(a).
“Final Order” means the final order of the Court, in a form acceptable to the Parties, each acting reasonably, approving the Arrangement, as such order may be
amended by the Court (with the consent of each of the Parties, acting reasonably) at any time prior to the Effective Date or as such order may be affirmed or amended on appeal (provided, that any such amendment is satisfactory to
each of the Parties, acting reasonably).
“Financing” has the meaning specified in Section 6.19(a).
“Financing Agreements” has the meaning specified in Section 6.19(a).
“Financing Incentive Shares” has the meaning specified in Section 6.19(a).
“Financing Incentive Warrants” has the meaning specified in Section 6.19(a).
“Financing Investors” has the meaning specified in Section 6.19(a).
“Fraud” means actual and intentional common law fraud committed by a Party with respect to the making of such Party’s representations and warranties expressly
set forth in this Agreement or any Ancillary Document with the intent that any other Party rely thereon. Under no circumstances shall “fraud” include any equitable fraud, constructive fraud, negligent misrepresentation, unfair dealings, or
any other fraud or torts based on recklessness or negligence.
“Fraud Claim” means any claim based on Fraud.
“Fully Diluted Common Shares Outstanding” means, without duplication, at any measurement time (a)(i) ten (10), multiplied by (ii) the aggregate number of
Multiple Voting Company Shares that are issued and outstanding, plus (b) the aggregate number of Subordinated Voting Company Shares that are issued and outstanding, plus (c) the aggregate number of Subordinated Voting
Company Shares to be issued pursuant to the exercise and conversion of the Company Options in accordance therewith, plus (d) the aggregate number of Subordinated Voting Company Shares to be issued pursuant to the exercise and
conversion of the Company Warrants in accordance therewith, plus (e) the aggregate number of Subordinated Voting Company Shares to be issued pursuant to the vesting of the Company RSUs in accordance therewith.
“GAAP” means generally accepted accounting principles as in effect in the United States of America.
“Governmental Authority” means any federal, state, provincial, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality,
department or agency, including any stock exchange, securities commission, or any court, tribunal, administrative hearing body, arbitration panel or body (public or private), commission, or other similar dispute-resolving panel or body.
“Hazardous Material” means any substance, material or waste that is regulated, or that could result in the imposition of Liability or standards of conduct, under
any Environmental Law, including petroleum and its by-products, asbestos, polychlorinated biphenyls, per- and polyfluoroalkyl substances, radon, mold, noise, odor and urea formaldehyde insulation.
“HSR Act” mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and any rules or regulations promulgated thereunder.
“IFRS” means International Financial Reporting Standards.
“Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued
but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business), (c) any (i) accrued or outstanding severance, retention or
termination payments, (ii) accrued paid time off (including vacation, personal and sick days) or (iii) accrued bonuses, commissions or other incentive compensation, in each case, in respect of any current or former employee, officer,
director or other individual service provider of the Company and together with the employer’s portion of all FICA state, local, or foreign withholding, payroll, employment, unemployment, social security or similar Taxes in connection with
such amounts, calculated as if all such amounts were paid on the Closing Date, (d) any obligations under any unfunded or underfunded pension or retirement, post-retirement medical, post-employment benefit or nonqualified deferred
compensation plans, programs, agreements or arrangements, together with the employer’s portion of all payroll, employment, unemployment, social security or similar Taxes in connection with such amounts, (e) any other indebtedness of such
Person that is evidenced by a note, bond, debenture, credit agreement or similar instrument, (f) all obligations of such Person under leases that should be classified as capital leases in accordance with GAAP or IFRS, (g) all obligations of
such Person for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (h) all obligations of such Person in
respect of acceptances issued or created, (i) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the
happening of a contingency, (j) all obligations secured by a Lien on any property of such Person, (k) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person, (l)
any and all accounts payable of such Person, (m) any and all accrued expenses of such Person, and (n) all obligation described in clauses (a) through (m) above of any other Person which is directly or indirectly guaranteed by such Person or
which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss, but in all cases excluding transaction Expenses associated with the
transactions contemplated by this Agreement.
“Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (a) Trademarks; (b) Copyrights; (c) Trade Secrets; (d)
Patents; (e) Internet Assets; and (f) Software, data, and databases, and (g) all other intellectual property and related proprietary and moral rights together with all goodwill related to the foregoing.
“Intended Company Tax Treatment” has the meaning specified in the Recitals hereto.
“Intended SPAC Tax Treatment” has the meaning specified in the Recitals hereto.
“Intended Tax Treatment” has the meaning specified in the Recitals hereto.
“Interim Order” means the interim order of the Court contemplated by Section 2.2 and made pursuant to Section 291 of the BCBCA in a form acceptable to
the Company and the SPAC, each acting reasonably, providing for, among other things, the calling and holding of the Company Meeting, as the same may be amended by the Court or with the consent of the SPAC and the Company, such consent not
to be unreasonably withheld, conditioned or delayed.
“Interim Period” has the meaning specified in Section 6.1.
“Internal Controls” has the meaning specified in Section 5.7(d).
“Internet Assets” means all domain name registrations, social media accounts, handles, and identifiers, web sites and web addresses and related rights, items and
documentation related thereto, and applications for registration therefor.
“In-the-Money Option” means each Company Option for which the exercise price per share subject to such Company Option is less than the Common Conversion Ratio
multiplied by $10.20.
“Inversion” has the meaning specified in the Recitals hereto.
“Investment Canada Act” means the Investment Canada Act, R.S.C., 1985, c. 28 (1st Supp.), as amended, and any rules or regulations promulgated thereunder.
“Investment Company Act” has the meaning specified in Section 3.17.
“IPO” means the initial public offering of the SPAC Units pursuant to the IPO Prospectus.
“IPO Prospectus” has the meaning specified in the Recitals hereto.
“IPO Underwriters” means the several underwriters, as represented by Citigroup Global Markets Inc. and Goldman Sachs & Co. LLC in the IPO.
“IRS” means the United States Internal Revenue Service.
“ITA” means the Income Tax Act (Canada).
“JOBS Act” has the meaning specified in Section 3.16.
“K&E” has the meaning specified in Section 6.10(e).
“Key Employee” means Sunny Trinh, Chris Merkel, Bryan Went and David Oliver.
“Key Employment Agreements” has the meaning set forth in Section 6.15(e).
“Knowledge” means, (a) with respect to the SPAC, the actual knowledge of the individuals set forth on Section 12.1(a) of the SPAC Disclosure Schedules
after reasonable due inquiry, (b) with respect to Amalco Sub, the actual knowledge of the individuals set forth on Section 12.1(b) of the SPAC Disclosure Schedules after reasonable due inquiry, and (c) with respect to the Company,
the actual knowledge of the individuals set forth on Section 12.1(c) of the Company Disclosure Schedules after reasonable due inquiry.
“Labor Agreement” means any collective bargaining agreement or other labor-related Contract with any labor union, labor organization, or works council.
“Latest Balance Sheet Date” means (a) with respect to the Company and its Subsidiaries, April 30, 2023 and (b) with respect to the SPAC, June 30, 2023.
“Law” means any federal, state, county, local, provincial, municipal, foreign, international, supranational or other law, act, statute, legislation, principle of
common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, resolution, requirement, writ, injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed,
approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“Leases” has the meaning specified in Section 5.16(a).
“Letter of Transmittal” has the meaning specified in Section 2.14(b).
“Liabilities” means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, contingent or otherwise, whether
known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP, IFRS or other applicable accounting standards),
including Tax liabilities due or to become due.
“Licensed IP” means all Intellectual Property in which the Company has or purports to have a license or non-ownership right to use or exploit such Intellectual
Property, including Intellectual Property subject to a covenant not to sue in favor of the Company.
“Lien” means any mortgage, pledge, security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien or charge of any kind
(including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person,
license, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Lost Certificate Affidavit” has the meaning specified in Section 2.14(f).
“Matching Period” has the meaning specified in Section 6.6(d)(v).
“Material Adverse Effect” means, with respect to any specified Person, any fact, event, occurrence, change or effect that has had, or would reasonably be
expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, Liabilities, results of operations or condition (financial or otherwise) of such Person, taken as a whole, or (b) the ability of
such Person on a timely basis to consummate the transactions contemplated by this Agreement or the Ancillary Documents to which it is a party or bound or to perform its obligations hereunder or thereunder; provided, however,
that for purposes of clause (a) above, any changes or effects directly or indirectly attributable to, resulting from, relating to or arising out of the following (by themselves or when aggregated with any other, changes or effects) shall
not be deemed to be, constitute, or be taken into account when determining whether there has or may, would or could have occurred a Material Adverse Effect: (i) general changes in the financial or securities markets or general economic or
political conditions in the country or region in which such Person does business; (ii) changes, conditions or effects that generally affect the industries in which such Person principally operates; (iii) changes in GAAP or other applicable
accounting principles or mandatory changes in the regulatory accounting requirements applicable to any industry in which such Person principally operates; (iv) conditions caused by acts of God, terrorism, war (whether or not declared),
natural disaster or weather conditions, epidemics, pandemics, or disease outbreaks (including SARS-CoV-2 or COVID-19, and any evolutions or variants thereof or related or associated epidemics, pandemics or disease outbreaks) or public
health emergencies (as declared by the World Health Organization or the Health and Human Services Secretary of the United States); and (v) any failure in and of itself by such Person to meet any internal or published budgets, projections,
forecasts or predictions of financial performance for any period (provided, that the underlying cause of any such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected
to occur to the extent not excluded by another exception herein); provided further, however, that any event, occurrence, fact, condition, or change referred to in clauses (i)—(iv) immediately above shall be taken into account
in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition, or change has a disproportionate effect on such Person compared to other
participants in the industries in which such Person primarily conducts its businesses.
“Misconduct” has the meaning specified in Section 5.19(c).
“MoFo” has the meaning specified in Section 6.10(e).
“Multiple Voting Company Shares” means the common shares of the Company, without par value, with multiple voting rights.
“Nasdaq” means the Nasdaq Global Market.
“New Company Group” has the meaning specified in Section 11.13(b).
“New PubCo” has the meaning specified in the Recitals hereto.
“New PubCo Common Shares” means, following the SPAC Continuance, the common shares of New PubCo.
“New PubCo Organizational Documents” has the meaning specified in Section 2.7(a).
“New PubCo Securities” means, following the SPAC Continuance, New PubCo Common Shares, and New PubCo Warrants, collectively.
“New PubCo Warrants” means warrants to purchase shares in New PubCo with equivalent terms to the SPAC Private Warrants and SPAC Public Warrants.
“Non-Party Affiliate” has the meaning specified in Section 11.9.
“Non-Redemption Agreement” has the meaning specified in Section 6.19(a).
“OFAC” has the meaning specified in Section 12.1
“Off-the-Shelf Software” has the meaning specified in Section 5.14(b).
“Order” means any order, directive, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, award or other action that is or has
been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational Documents” means, with respect to any Person that is an entity, its Certificate of Incorporation, certificate of formation, bylaws, operating
agreement, memorandum of association, notice of articles, articles or similar organizational documents, in each case, as amended.
“Outside Date” has the meaning specified in Section 9.1(b)(iv).
“Owned IP” means all Intellectual Property in which the Company has or purports to have an ownership interest in any nature (whether solely or jointly with
another Person).
“Party” has the meaning specified in the Preamble hereto.
“Patents” means any patents, patent applications and the inventions, designs and improvements described and claimed therein, patentable inventions, and other
patent rights (including any divisional, provisional, continuations, continuations-in-part, substitutions, or reissues thereof, whether or not patents are issued on any such applications and whether or not any such applications are amended,
modified, withdrawn, or refiled).
“PCAOB” means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“PCAOB Financial Statements” has the meaning specified in Section 6.4(a).
“Per Common Share Amalgamation Consideration” means, (i) with respect to each Multiple Voting Company Share, an amount of New PubCo Common Shares equal to (A)
ten (10), multiplied by (B) the Common Conversion Ratio, and (ii) with respect to each Subordinated Voting Company Share, an amount of New PubCo Common Shares equal the Common Conversion Ratio.
“Permits” means all federal, state, provincial, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations,
exemptions, licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations, ratings, registrations, qualifications or Orders of any Governmental Authority or any
other Person.
“Permitted Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not delinquent or (ii) being
contested in good faith and by appropriate Proceedings, and adequate reserves have been established with respect thereto, (b) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due
and payable and as would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property subject thereto, (c) Liens incurred or deposits made in the ordinary course of business
in connection with social security, (d) Liens on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business, or (e) Liens arising under this Agreement or any Ancillary
Document.
“Person” means an individual, corporation, partnership (including a general partnership, limited partnership, or limited liability partnership), limited
liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Personal Data” means, with respect to any natural Person, any information that allows the identification of such Person or enables access to such Person’s
financial information or that is otherwise subject to or defined as “personal data,” “personally identifiable information,” “personal information,” “protected health information” or similar term under any applicable Privacy Laws.
“Personal Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible
personal property.
“Plan of Arrangement” has the meaning specified in the Recitals hereto.
“Post-Closing New PubCo Board” has the meaning specified in Section 6.15(a).
“Premium Cap” has the meaning specified in Section 6.17(b).
“Privacy Laws” means all applicable Laws relating to privacy and protection of Personal Data and any and all similar Laws relating to privacy, security, data
protection, data availability and destruction and data breach, including security incident notification.
“Proceeding” or “Action” means any notice of noncompliance or violation, or any claim, demand, action, suit, proceeding, complaint (including a qui tam
complaint), charge, hearing, litigation, audit, settlement, labor dispute, inquiry, civil investigative demand, subpoena, stipulation, assessment, arbitration, demand for recoupment or revocation, or any request (including any request for
information) or investigation before or by a Governmental Authority or an arbitrator.
“Proxy Statement” has the meaning specified in Section 6.12(a).
“Public Certifications” means collectively, all certifications and statements required by (a) Rules 13a-14 or 15d-14 under the Exchange Act, and (b) 18 U.S.C. §
1350 (Section 906 of SOX).
“Redemption” has the meaning specified in Section 6.12(a).
“Redemption Rights” has the meaning specified in Section 6.12(a).
“Registration Rights Agreement” has the meaning specified in Section 6.20 hereto.
“Registration Statement” has the meaning specified in Section 6.12(a).
“Registry” means any Carbon Credit registry established or operated for the verification, holding, transfer, retirement, and cancellation of a Carbon Credit,
including but not limited to, the registry maintained by each of Verra, Gold Standard, Climate Action Reserve or the American Carbon Registry.
“Registry Account” means an account established by or on behalf of the Company with a Registry including for the holding, transfer, retirement and cancellation
of a Carbon Credit.
“Related Party Transactions” has the meaning specified in Section 5.22.
“Related Person” has the meaning specified in Section 5.22.
“Release” means any release, spill, emission, leaking, pumping, pouring, emptying, escaping, injection, deposit, disposal, discharge, dispersal, or leaching into
the indoor or outdoor environment, or into or out of any property.
“Released Claims” has the meaning specified in Section 10.1.
“Representatives” means, as to any Person, such Person’s Affiliates and the respective managers, directors, officers, employees, independent contractors,
consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person or its Affiliates.
“Required Company Shareholder Approval” has the meaning specified in Section 8.1(b).
“Required Financial Statements” has the meaning specified in Section 6.4(a).
“Required SPAC Shareholder Approval” has the meaning specified in Section 8.1(a).
“Rules” has the meaning specified in Section 5.33.
“Sanctioned Country” means any country or region or government thereof that is, or has been in the last five years, the subject or target of a comprehensive
embargo under Trade Controls (including Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, the so-called “Donetsk People’s Republic,” and the so-called “Luhansk People’s Republic”).
“Sanctioned Person” means any Person that is the subject or target of sanctions or restrictions under Trade Controls including: (i) any Person listed on any U.S.
or non-U.S. sanctions- or export-related restricted party list, including the U.S. Department of the Treasury Office of Foreign Assets Control’s (“OFAC”) List of Specially Designated Nationals and Blocked Persons, or any other OFAC,
U.S. Department of Commerce Bureau of Industry and Security, or U.S. Department of State sanctions- or export-related restricted party list; (ii) any Person located, organized, or resident in a Sanctioned Country; (iii) any Person that is,
in the aggregate, 50 percent or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clauses (i)-(ii); or (iv) any national of a Sanctioned Country with whom U.S. persons are prohibited from
dealing.
“Sanctions” means all U.S. and non-U.S. Laws relating to economic or trade sanctions, including the Laws administered or enforced by the United States (including
by OFAC or the U.S. Department of State) and the United Nations Security Council.
“SEC” means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“SEC Reports” has the meaning specified in Section 3.7.
“Securities Act” means the Securities Act of 1933, as amended.
“SEDAR+ Reports” has the meaning specified in Section 5.31.
“Signing Filing” has the meaning specified in Section 6.13(b).
“Signing Press Release” has the meaning specified in Section 6.13(b).
“Software” means any computer software programs, including all source code, object code, data and databases, and documentation related thereto and all software
modules, tools and databases.
“Source Code” means the source code and interpreted code for all Software, including all comments and procedural code, in a form intelligible to trained
programmers and capable of being translated into object code through assembly, compiling or otherwise, or capable of being interpreted (e.g., by an interpreter), in each case for operation on a host system, further including all related
documentation, including flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows, data structures, and control logic of the Software in sufficient detail to enable a trained
programmer through study of such documentation to maintain or modify the Software without undue experimentation.
“SOX” means the U.S. Sarbanes-Oxley Act of 2002, as amended.
“SPAC” has the meaning specified in the Preamble hereto.
“SPAC Board” means prior to the SPAC Continuance, the members of the board of directors of the SPAC.
“SPAC Class A Shares” means prior to the SPAC Continuance, the shares of Class A common stock, par value $0.0001 per share, of the SPAC.
“SPAC Class B Shares” means prior to the SPAC Continuance, the shares of Class B common stock, par value $0.0001 per share, of the SPAC.
“SPAC Continuance” has the meaning specified in the Recitals hereto.
“SPAC Disclosure Schedules” has the meaning specified in Article III.
“SPAC Extension Expenses” has the meaning specified in Section 9.3(a).
“SPAC Financials” has the meaning specified in Section 3.7(d).
“SPAC Group” has the meaning specified in Section 11.13(a).
“SPAC Material Adverse Effect” has the meaning specified in Section 3.1.
“SPAC Material Contract” has the meaning specified in Section 3.14(a).
“SPAC Preferred Shares” means the shares of preferred stock, par value $0.0001 per share, of the SPAC.
“SPAC Private Warrants” means non-redeemable whole warrants, issued in a private placement to the Sponsor at the time of the consummation of the IPO, entitling
the holders thereof to purchase one (1) SPAC Class A Share at a purchase price of $11.50 per share.
“SPAC Public Shareholders” has the meaning specified in Section 10.1.
“SPAC Public Warrants” means redeemable whole warrants, one-half (1/2) of each such warrant which was included as part of each SPAC Unit issued in the IPO,
entitling the holders thereof to purchase one (1) SPAC Class A Share at a purchase price of $11.50 per share.
“SPAC Securities” means prior to the SPAC Continuance, the SPAC Units, SPAC Shares, SPAC Preferred Shares and SPAC Warrants, collectively.
“SPAC Shareholder Approval Matters” has the meaning specified in Section 6.12(a).
“SPAC Shareholders” means, collectively, the holders of SPAC Shares prior to the Effective Time.
“SPAC Shares” means the SPAC Class A Shares and the SPAC Class B Shares, collectively.
“SPAC Special Meeting” has the meaning specified in Section 6.12(a).
“SPAC Specified Expenses” has the meaning set forth in Section 9.3(a).
“SPAC Specified Representations” has the meaning set forth in Section 8.2(a)(i).
“SPAC Units” means the units of the SPAC issued in the IPO (including overallotment units acquired by the IPO Underwriter), consisting of (a) one (1) SPAC Class
A Share and (b) one-half (1/2) of one SPAC Public Warrant.
“SPAC Warrants” means the SPAC Private Warrants and the SPAC Public Warrants, collectively.
“Sponsor” has the meaning specified in the Recitals hereto.
“Sponsor Side Letter” has the meaning specified in the Recitals hereto.
“Subordinated Voting Company Shares” means the common shares of the Company, without par value, with subordinated voting rights.
“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (a) if a corporation, a majority of
the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other subsidiaries of that Person or a combination thereof, or (b) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interests thereof is at the
time owned or controlled, directly or indirectly, by any Person or one or more subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a
partnership, association or other business entity if such Person or Persons will be allocated a majority of partnership, association or other business entity gains or losses or will be or control the managing director, managing member,
general partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person will also include any variable interest entity which is consolidated with such Person under applicable accounting
rules.
“Superior Proposal” means any bona fide written Acquisition Proposal to acquire, directly or indirectly, not less than all of the outstanding Company Shares or
all or substantially all of the assets of the Company on a consolidated basis that did not result from a breach of Section 6.6 and: (a) that is reasonably capable of being completed, without undue delay, taking into account all
financial, legal, regulatory and other aspects of such Acquisition Proposal, (b) that is not subject to a financing condition and in respect of which it has been demonstrated to the satisfaction of the Company Board after receipt of advice
from its financial advisors and legal counsel, that adequate arrangements have been made in respect of any financing required to complete such Acquisition Proposal; (c) that is not subject to a due diligence condition; and (d) in respect of
which the Company Board determines, in its good faith judgment, after receiving the advice of its legal counsel and its financial advisors, that it would, if consummated in accordance with its terms (but without assuming away the risk of
non-completion), result in a transaction which is more favorable, from a financial point of view, to Company Shareholders than the Arrangement (including any amendments to the terms and conditions of the Arrangement proposed by the SPAC
pursuant to Section 6.6(d)).
“Superior Proposal Notice” has the meaning specified in Section 6.6(d)(iii).
“Tail Policy” has the meaning specified in Section 6.17(b).
“Tax” or “Taxes” means (a) all direct or indirect federal, state, provincial, local, foreign and other net income, gross income, gross receipts, sales,
use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees,
excise, severance, stamp, occupation, premium, property, windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts with respect thereto, (b) any Liability for payment of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for any period or
otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as a result of any tax sharing, tax group, tax indemnity or tax allocation agreement (excluding commercial agreements
entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes) with, or any other express or implied agreement to indemnify, any other Person.
“Tax Return” means any return, report, statement, refund, claim, declaration, information return, statement, estimate or other document filed or required to be
filed with a Governmental Authority in respect of Taxes, including any Schedule or attachment thereto and including any amendments thereof.
“Trade Controls” has the meaning specified in Section 5.25(a).
“Trade Secrets” means any trade secrets, confidential business information, concepts, ideas, designs, research or development information, processes, procedures,
techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods, know-how, data, mask works, discoveries, inventions, modifications, extensions, improvements, customer and pricing lists,
and other proprietary rights (whether or not patentable or subject to copyright, trademark, or trade secret protection).
“Trademarks” means any trademarks, service marks, trade dress, trade names, brand names, internet domain names, designs, logos, or corporate names (including, in
each case, the goodwill associated therewith), whether registered or unregistered, and all registrations and applications for registration and renewal thereof.
“Trading Day” means any day on which the New PubCo Common Shares are actually traded on the principal securities exchange or securities market on which the New
PubCo Common Shares are then traded.
“Trading Market” means the stock exchange or such other nationally recognized stock market on which the New PubCo Common Shares are trading at the time of
determination.
“Transfer Taxes” has the meaning specified in Section 6.10(b).
“Transmittal Documents” has the meaning specified in Section 2.14(d).
“Trust Account” means the trust account established by the SPAC with the proceeds from the IPO pursuant to the Trust Agreement in accordance with the IPO
Prospectus.
“Trust Agreement” means that certain Investment Management Trust Agreement, dated as of November 1, 2021, as it may be amended, by and between the SPAC and the
Trustee.
“Trustee” means Continental Stock Transfer & Trust Company, in its capacity as trustee under the Trust Agreement.
“Unaudited Balance Sheet” has the meaning specified in Section 5.7(a)(ii).
“Unaudited Financial Statements” has the meaning specified in Section 5.7(a)(ii).
“VWAP” means, with respect to any security, for each Trading Day, the daily volume weighted average price (based on such Trading Day) of such security on the
Trading Market as reported by Bloomberg Financial L.P. using the AQR function.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, each Party has caused this Agreement to be
signed and delivered as of the date first written above.
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FOCUS IMPACT ACQUISITION CORP.
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By:
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/s/Carl Stanton
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Name:
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Carl Stanton
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Title:
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Chief Executive Officer
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FOCUS IMPACT AMALCO SUB LTD.
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By:
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/s/Carl Stanton
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Name:
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Carl Stanton
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Title:
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Chief Executive Officer
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DEVVSTREAM HOLDINGS INC.
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By:
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/s/Sunny Trinh
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Name
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Sunny Trinh
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Title:
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Chief Executive Officer
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[Signature Page to the Business Combination Agreement]
Exhibit A
Plan of Arrangement
(Attached.)
Exhibit B
New PubCo Organizational Documents
(Attached.)
Exhibit C
Sponsor Side Letter
(Attached.)
Exhibit D
Company Support & Lock-Up Agreement
(Attached.)
Exhibit E
Registration Rights Agreement
(Attached.)
Exhibit F
Arrangement Resolution
(Attached.)
Schedule A
Core Company Securityholders
Schedule B
Company Securityholders Party to the Registration Rights Agreement
Schedule C
Company Capital Expenditures Budget
DevvStream CapEx Budget - 2nd Half CY 2023
Project
|
Amount
|
Timeframe
|
BCRB Offtake Agreement
|
$140,000
|
Q4 2023
|
eWater Offtake Agreement
|
$500,000
|
Q4 2023
|
|
$640,000
|
|