UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
August 8, 2023
Maquia Capital Acquisition Corporation
(Exact name of registrant as specified in its charter)
Delaware |
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001-40380 |
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85-4283150 |
(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
50 Biscayne Boulevard, Suite 2406
Miami, FL 33132
(Address of principal executive offices, including
zip code)
Registrant’s telephone number, including
area code: (305) 608-1395
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
x |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13(c)) |
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class |
Trading
Symbol |
Name of each exchange on
which registered |
Units, each consisting of one share of Class A Common Stock and one-half of one Redeemable Warrant |
MAQCU |
The Nasdaq Stock Market LLC |
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Class A Common Stock, par value $0.0001 per share |
MAQCU |
The Nasdaq Stock Market LLC |
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Redeemable warrants, each whole warrant exercisable for one share of Class A Common Stock for $11.50 per share |
MAQCU |
The Nasdaq Stock Market LLC |
Indicate by check mark whether the
registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or
Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement.
General
On August
8, 2023, Maquia Capital Acquisition Corporation, a Delaware corporation (“Maquia” or “SPAC”), Maquia
Merger Sub, Inc., a Delaware corporation and wholly owned direct subsidiary of SPAC (“Merger Sub”), and Immersed Inc.,
a Delaware corporation (“Immersed” or the “Company”), entered into a business combination agreement
(the “Business Combination Agreement”), pursuant to which Maquia and Immersed agreed to combine. Capitalized terms
used in this Current Report on Form 8- K but not otherwise defined herein have the meanings given to them in the Business Combination
Agreement.
Business Combination Agreement
Structure of the Transaction
Pursuant
to the Business Combination Agreement, on the date (the “Closing Date”) of the closing (the “Closing”)
of the transactions contemplated by the Business Combination Agreement (the “Proposed Transactions”), Merger Sub, a
newly formed, wholly-owned direct subsidiary of Maquia, will be merged with and into the Company (the “Merger”), with
the Company surviving the Merger as a wholly-owned direct subsidiary of Maquia (the “Surviving Corporation”).
Consideration
Pursuant
to the Merger, a number of shares of common stock of SPAC (“New SPAC Common Stock”) equal to $150,000,000 divided by
the price per share payable to SPAC’s public stockholders who properly exercise their redemption rights in connection with the vote
by SPAC’s public stockholders to consider the Proposed Transactions shall be issued to holders of Immersed’s outstanding shares
of common stock and preferred stock or allocated to holders of certain of Immersed’s options for issuance upon exercise thereof
(the “SPAC Redemption Price”). All of Immersed’s options that are outstanding immediately prior to the Closing
shall convert into options exercisable for New SPAC Common Stock.
Proxy Statement; Registration Statement
The
Business Combination Agreement provides that, as promptly as practicable after the execution of the Business Combination Agreement,
SPAC and the Company will prepare and file with the Securities and Exchange Commission (the “SEC”) a joint
consent solicitation/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the
stockholders of SPAC and to the stockholders of the Company relating to (i) with respect to the Company’s stockholders, the
action to be taken by certain stockholders of the Company pursuant to the Written Consent (as defined below) and (ii) with respect
to SPAC’s stockholders, the special meeting of SPAC’s stockholders (the “SPAC Stockholders’
Meeting”) to be held to consider approval and adoption of (1) the Business Combination Agreement and the Merger, (2) the
issuance of New SPAC Common Stock as contemplated by the Business Combination Agreement, (3) the second amended and restated SPAC
Certificate of Incorporation as set forth on Exhibit B-1 of the Business Combination Agreement, (4) the Stock Incentive Plan
(as defined below) and (5) any other proposals the parties deem necessary to effectuate the Proposed Transactions (collectively, the
“SPAC Proposals”). In addition, SPAC will prepare and file with the SEC a registration statement on Form S-4
(together with all amendments thereto, the “Registration Statement”), in which the Proxy Statement will be
included, in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”)
of the shares of New SPAC Common Stock (i) to be issued to the stockholders of the Company pursuant to the Business Combination
Agreement and (ii) held by the stockholders of SPAC immediately prior to the Effective Time.
Stockholder Approvals
Pursuant
to the Business Combination Agreement, SPAC will call and hold the SPAC Stockholders’ Meeting as promptly as practicable after the
date on which the Registration Statement becomes effective for the purpose of voting solely upon the SPAC Proposals, and SPAC will use
its reasonable best efforts to hold the SPAC Stockholders’ Meeting as soon as practicable after the date on which the Registration
Statement becomes effective (but in any event no later than twenty-five (25) days after the date on which the Proxy Statement is mailed
to stockholders of SPAC). SPAC will use its reasonable best efforts to obtain the approval of the SPAC Proposals at the SPAC Stockholders’
Meeting, including by soliciting from its stockholders proxies as promptly as possible in favor of the SPAC Proposals, and will take all
other action necessary or advisable to secure the required vote or consent of its stockholders. The SPAC Board will recommend to its stockholders
that they approve the SPAC Proposals and will include such recommendation in the Proxy Statement.
As promptly
as practicable after the Registration Statement becomes effective, the Company will seek the irrevocable written consent of holders of
capital stock of the Company sufficient to approve the Business Combination in favor of the approval and adoption of the Business Combination
Agreement, the Merger and the other Proposed Transactions (the “Written Consent”).
Stock Exchange Listing
SPAC will
use its reasonable best efforts to cause the shares of New SPAC Common Stock issued in connection with the Proposed Transactions to be
approved for listing on The Nasdaq Stock Market LLC (“Nasdaq”) at Closing. During the period from the date of the Business
Combination Agreement until the Closing (the “Interim Period”), SPAC will use its reasonable best efforts to keep the
SPAC’s Units, Class A Common Stock and SPAC Warrants listed for trading on Nasdaq.
PIPE Financing
During
the Interim Period, SPAC may execute subscription agreements (each, a “PIPE Subscription Agreement”) with certain
investors (the “PIPE Investors”) mutually agreed by SPAC and the Company pursuant to which SPAC would issue and
sell shares of SPAC’s Class A common stock to such PIPE Investors on the Closing Date, at such prices and on such other terms
as may be set forth in the PIPE Subscription Agreements (the “PIPE Financing”); provided that unless otherwise
agreed by SPAC and the Company in writing, (i) no such PIPE Subscription Agreement will provide for a purchase price of shares of
SPAC Class A common stock at a price less than the SPAC Redemption Price per share of SPAC Class A common stock (including any
discounts, rebates, equity kickers or promote), and (ii) no such PIPE Subscription Agreement will provide for the issuance of any
equity securities of SPAC other than shares of SPAC Class A common stock.
SPAC Extension
The Business
Combination Agreement provides that, unless the Closing has occurred or the Business Combination Agreement has otherwise been terminated,
(i) prior to February 7, 2024, SPAC will make, or cause SPAC’s sponsor, Maquia Investments North America, LLC (“Sponsor”)
to make, the deposits into SPAC’s trust account necessary to extend the deadline by which SPAC must complete its initial business
combination (the “SPAC Business Combination Deadline”) to February 7, 2024 as set forth in the proxy statement filed
by SPAC on May 5, 2023 and SPAC’s organizational documents and (ii) from and after February 7, 2024, SPAC will use commercially
reasonable efforts to take any and all actions necessary, including filing a proxy statement, amending SPAC’s organizational documents
and obtaining the necessary approval from SPAC’s stockholders, to further extend the SPAC Business Combination Deadline after February
7, 2024 until a date mutually agreed in writing between SPAC and the Company.
Representations, Warranties and Covenants
The Business
Combination Agreement contains customary representations and warranties of the Company, SPAC and Merger Sub relating to, among other things,
their organization and qualification, outstanding capitalization, the absence of certain changes or events, employee benefit plans, labor
and employment matters, intellectual property matters, tax matters, material contracts, and other matters relating to their respective
businesses and authority to consummate the Proposed Transactions.
The Business
Combination Agreement also contains covenants by Company, SPAC and Merger Sub to conduct their businesses in the ordinary course and consistent
with past practice during the period between the execution of the Business Combination Agreement and consummation of the Proposed Transactions
and to refrain from taking certain actions specified in the Business Combination Agreement, subject to certain exceptions. Each of Maquia
and Immersed has agreed to customary “no shop” obligations.
Conditions to the Merger
Mutual.
The obligations of the Company, SPAC and Merger Sub to consummate the Proposed Transactions, including the Merger, are subject to the
satisfaction or waiver (where permissible) at or prior to the Closing of the following conditions:
| 1. | The Written Consent will have been delivered to SPAC; |
| 2. | The SPAC Proposals will have been approved and adopted by the requisite affirmative
vote of the stockholders of SPAC in accordance with the Proxy Statement, the Delaware General Corporation Law, the SPAC’s organizational
documents and the rules and regulations of Nasdaq; |
| 3. | No governmental authority will have enacted, issued, promulgated, enforced or
entered any law, rule, regulation, judgment, decree, executive order or award which is then in effect and has the effect of making the
Proposed Transactions, including the Merger, illegal or otherwise prohibiting consummation of the Proposed Transactions, including the
Merger; |
| 4. | All required filings under the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the “HSR Act”) will have been completed and any applicable waiting period (and any extension thereof) applicable
to the consummation of the Proposed Transactions under the HSR Act will have expired or been terminated, and any pre-Closing approvals
or clearances reasonably required thereunder will have been obtained; |
| 5. | The Registration Statement will have been declared effective under the Securities
Act. No stop order suspending the effectiveness of the Registration Statement will be in effect, and no proceedings for purposes of suspending
the effectiveness of the Registration Statement will have been initiated or be threatened by the SEC; |
| 6. | The New SPAC Common Stock to be issued pursuant to the Business Combination Agreement
will have been approved for listing on Nasdaq, subject only to official notice of issuance thereof; and |
| 7. | Upon the Closing, after giving effect to the SPAC Redemption Rights, SPAC will
have net tangible assets of at least $5,000,001 (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). |
SPAC
and Merger Sub. The obligations of SPAC and Merger
Sub to consummate the Proposed Transactions, including the Merger, are subject to the satisfaction or waiver (where permissible) at or
prior to the Closing of the following additional conditions:
| 1. | Certain fundamental representations and warranties of the Company contained in
the Business Combination Agreement will each be true and correct in all respects as of the Closing Date as though made on the Closing
Date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation
and warranty will be true and correct as of such earlier date; the representations and warranties regarding the capitalization of the
Company contained in the Business Combination Agreement will each be true and correct in all respects other than de minimis inaccuracies
as of the Closing Date as though made on the Closing Date, except to the extent that any such representation and warranty expressly speaks
as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date; and all other
representations and warranties of the Company contained in the Business Combination Agreement will be true and correct (without giving
any effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation
set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date, except (i) to the extent that
any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true
and correct as of such earlier date and (ii) where the failure of such representations and warranties to be true and correct (whether
as of the Closing Date or such earlier date), taken as a whole, does not result in a Company Material Adverse Effect; |
| 2. | The Company will have performed or complied in all material respects with all
agreements and covenants required by the Business Combination Agreement to be performed or complied with by it on or prior to the Effective
Time; |
| 3. | No Company Material Adverse Effect will have occurred between the date of the Business
Combination Agreement and the Closing Date; |
| 4. | The Company will have delivered to SPAC a certificate, dated the date of the Closing,
signed by an officer of the Company, certifying as to the satisfaction of the conditions specified in the Business Combination Agreement; |
| 5. | Other than those persons identified as continuing directors or officers on an exhibit
to the Business Combination Agreement, all members of the Immersed board of directors and officers of Immersed will have executed written
resignations effective as of the Effective Time; and |
| 6. | All parties to the Registration Rights and Lock-Up Agreement (as defined below)
(other than SPAC and the holders of equity securities of SPAC prior to the Closing contemplated to be a party thereto) will have delivered,
or cause to be delivered, to SPAC a copy of the Registration Rights and Lock-Up Agreement duly executed by all such parties. |
The
Company. The obligations of the Company to consummate the Proposed Transactions, including the Merger, are subject to the satisfaction
or waiver (where permissible) at or prior to Closing of the following additional conditions:
| 1. | Certain fundamental representations and warranties of SPAC and Merger Sub contained
in the Business Combination Agreement will each be true and correct in all respects as of the Closing Date as though made on the Closing
Date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation
and warranty will be true and correct as of such earlier date; the representations and warranties regarding the capitalization of SPAC
and Merger Sub contained in the Business Combination Agreement will each be true and correct in all respects other than de minimis inaccuracies
as of the Closing Date as though made on the Closing Date, except to the extent that any such representation and warranty expressly speaks
as of an earlier date, in which case such representation and warranty will be true and correct as of such earlier date; and all other
representations and warranties of SPAC and Merger Sub contained in the Business Combination Agreement will be true and correct (without
giving any effect to any limitation as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation
set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date, except (i) to the extent that
any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true
and correct as of such earlier date and (ii) where the failure of such representations and warranties to be true and correct (whether
as of the Closing Date or such earlier date), taken as a whole, does not result in an SPAC Material Adverse Effect; |
| 2. | SPAC and Merger Sub will have performed or complied in all material respects with
all agreements and covenants required by the Business Combination Agreement to be performed or complied with by it on or prior to the
Effective Time; |
| 3. | No SPAC Material Adverse Effect will have occurred between the date of the Business
Combination Agreement and the Closing Date; |
| 4. | SPAC will have delivered to the Company a certificate, dated the date of the Closing,
signed by the President of SPAC, certifying as to the satisfaction of the conditions specified in the Business Combination Agreement; |
| 5. | SPAC and the holders of equity securities of SPAC prior to the Closing contemplated
to be a party thereto will have delivered a copy of the Registration Rights and Lock-Up Agreement duly executed by SPAC; |
| 6. | Other than those persons identified as continuing directors or officers on an exhibit
to the Business Combination Agreement, all members of the SPAC board of directors and all officers of SPAC will have executed written
resignations effective as of the Effective Time; |
| 7. | As of the Closing, SPAC will (i) not have any Indebtedness other than the Sponsor
Debt and (ii) provide evidence thereof to the Company; and |
| 8. | SPAC will deliver to the Company copies of the amendments to the Sponsor Promissory
Notes in connection with the Sponsor Debt pursuant to, and in accordance with, the Sponsor Support Agreement (as defined below). |
Termination
The Business
Combination Agreement may be terminated and the Merger and the other Proposed Transactions may be abandoned at any time prior to the Effective
Time, notwithstanding any requisite approval and adoption of the Business Combination Agreement and the Proposed Transactions by the stockholders
of the Company or SPAC, as follows:
| 1. | by mutual written consent of SPAC and the Company; |
| 2. | by either SPAC or the Company if the Effective Time will not have occurred prior
to February 7, 2024 (the “Outside Date”); provided, however, that the Business Combination Agreement may not be terminated
by or on behalf of any party that either directly or indirectly through its affiliates is in breach or violation of any representation,
warranty, covenant, agreement or obligation contained in the Business Combination Agreement and such breach or violation is the principal
cause of the failure of a closing condition set forth in the Business Combination Agreement on or prior to the Outside Date; |
| 3. | by either SPAC or the Company if any governmental authority in the United States
will have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling (whether temporary, preliminary or
permanent) which has become final and non-appealable and has the effect of making consummation of the Proposed Transactions, including
the Merger, illegal or otherwise preventing or prohibiting consummation of the Proposed Transactions, the Merger; or |
| 4. | by either SPAC or the Company if any of the SPAC Proposals will fail to receive
the requisite vote for approval at the SPAC Stockholders’ Meeting or any adjournment thereof; or |
| 5. | by SPAC if the Company will have failed to deliver the Written Consent to SPAC
after the Registration Statement becomes effective; or |
| 6. | by SPAC upon a breach of any representation, warranty, covenant or agreement on
the part of the Company set forth in the Business Combination Agreement, or if any representation or warranty of the Company will have
become untrue, in either case such that the conditions set forth in the Business Combination Agreement would not be satisfied (“Terminating
Company Breach”); provided that SPAC has not waived such Terminating Company Breach and SPAC and Merger Sub are not then in
material breach of their representations, warranties, covenants or agreements in the Business Combination Agreement; provided further
that, if such Terminating Company Breach is curable by the Company, SPAC may not terminate the Business Combination Agreement for so long
as the Company continues to exercise its reasonable efforts to cure such breach, unless such breach is not cured within 30 days after
notice of such breach is provided by SPAC to the Company; or |
| 7. | by the Company upon a breach of any representation, warranty, covenant or agreement
on the part of SPAC and Merger Sub set forth in the Business Combination Agreement, or if any representation or warranty
of SPAC and Merger Sub will have become untrue, in either case such that the conditions set forth in the Business Combination Agreement
would not be satisfied (“Terminating SPAC Breach”); provided that the Company has not waived such Terminating SPAC
Breach and the Company is not then in material breach of their representations, warranties, covenants or agreements in the Business Combination
Agreement; provided, however, that, if such Terminating SPAC Breach is curable by SPAC and Merger Sub, the Company may not
terminate the Business Combination Agreement for so long as SPAC and Merger Sub continue to exercise their reasonable efforts to cure
such breach, unless such breach is not cured within 30 days after notice of such breach is provided by the Company to SPAC. |
In the event
of the termination of the Business Combination Agreement, the Business Combination Agreement will forthwith become void, and there will
be no liability under the Business Combination Agreement on the part of any Party thereto, except as set forth in the Business Combination
Agreement, or in the case of termination subsequent to a willful material breach of the Business Combination Agreement by a Party.
The foregoing
description of the Business Combination Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions
of the Business Combination Agreement, the form of which is filed as Exhibit 2.1 hereto and is incorporated by reference herein.
Stockholder Support Agreement
Concurrently
with the execution and delivery of the Business Combination Agreement, SPAC, the Company and certain stockholders of Immersed, collectively
holding approximately 71.08% of the total number of outstanding shares of Immersed common stock and preferred stock (on an as converted
to common basis) (the “Stockholder Support Agreement”) pursuant to which, among other things, the Immersed stockholders
party thereto agreed to vote their shares of Company common stock and Company preferred stock in favor of the Business Combination Agreement,
the Merger and the other Proposed Transactions.
The foregoing
description of the Shareholder Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions
of the Shareholder Support Agreement, a copy of which is filed as Exhibit 10.1 hereto and is incorporated by reference herein.
Sponsor Support Agreement
Concurrently
with the execution and delivery of the Business Combination Agreement, SPAC, the Company, and the Sponsor and the directors and officers
of SPAC (the “Sponsor Parties”) entered into a sponsor support agreement (the “Sponsor Support Agreement”),
pursuant to which, among other things, the Sponsor Parties agreed to (i) vote their shares of SPAC Common Stock in favor of the Business
Combination Agreement and the Proposed Transactions and to not effect any sale or distribution of any equity securities of the Company
held by any of them until the Closing Date or the earlier termination of the Business Combination Agreement; (ii) waive any anti-dilution
provisions for the SPAC Class B Common Stock as set forth in the SPAC Organizational Documents; and (iii) waive their redemption rights
in connection with the Proposed Transactions.
In addition, the Sponsor agreed to:
| 1. | Subject 1,362,000 of its shares of New SPAC Common Stock to be received pursuant to
the Merger to an earnout as follows: following the Closing, if, at any time during the period following the Closing and expiring
on the second anniversary of the Closing Date (the “Earn- Out Period”), (i) the price of the shares of New SPAC Common
Stock equals or exceeds $13.00 per share for any period of 5 consecutive Trading Days, 500,000 Sponsor Earn-Out Shares will no longer
be subject to forfeiture; (ii) the price of the shares of New SPAC Common Stock equals or exceeds $15.00 per share for any period of 5
consecutive Trading Days, an additional 500,000 Sponsor Earn-Out Shares will no longer be subject to forfeiture; and (iii) the price of
the shares of New SPAC Common Stock equals or exceeds $20.00 per share for any period of 5 consecutive Trading Days, an additional 362,000
Sponsor Earn-Out Shares will no longer be subject to forfeiture; provided that if any earn-out targets have not been achieved on
or prior to the last day of the Earn-Out Period, then the relevant shares of New SPAC Common Stock will be forfeited and cancelled; |
| 2. | in connection with the extension of the SPAC Business Combination Deadline, (i)
continue to deposit monthly funding amounts into the Trust Fund in order to extend the SPAC Business Combination Deadline until February
7, 2024, and (ii) from and after February 7, 2024, use commercially reasonable efforts to take any and all actions necessary, including
filing a proxy statement, amending the SPAC organizational documents and obtaining the necessary approval from the SPAC Stockholders,
to further extend the SPAC Business Combination Deadline after February 7, 2024 until a date mutually agreed in writing between SPAC and
the Company; |
| 3. | amend the Sponsor Promissory Notes executed in connection with the Sponsor Debt
such that upon, and subject to, the Closing, (a) an aggregate amount of $500,000 of the outstanding Sponsor Debt under the Sponsor Promissory
Notes will be paid in cash to the Sponsor, (b) an aggregate amount of $500,000 of the outstanding Sponsor Debt under the Sponsor Promissory
Notes will remain place for a period of 12 months after the Closing Date with an interest rate of 8% per annum, and (c) the remaining
amount of the Sponsor Debt under the Sponsor Promissory Notes will be paid in shares of New SPAC Common Stock (valued at the SPAC Redemption
Price) at any time within 12 months of Closing; |
| 4. | use commercially reasonable efforts to raise the PIPE Financing, including cooperating
with SPAC and the Company as required and necessary in connection with the PIPE Financing; and |
| 5. | use commercially reasonable efforts to retain funds in the Trust Account and minimize
and mitigate the SPAC Redemption Rights, including entering into non-redemption agreements with certain stockholders of SPAC Shareholders. |
The foregoing
description of the Sponsor Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions
of the Sponsor Support Agreement, a copy of which is filed as Exhibit 10.2 hereto and is incorporated by reference herein.
Registration Rights and Lock-Up Agreement
At or
prior to the Closing, SPAC, its Sponsor, certain stockholders of the Company and certain stockholders of SPAC (the
“Holders”) will enter into a registration rights and lock-up agreement (the “Registration Rights and
Lock-Up Agreement”), pursuant to which, among other things, (a) SPAC will grant the Holders certain registration rights
following the Closing of the Proposed Transactions contemplated by the Business Combination Agreement with respect to shares of New
SPAC Common Stock, and (b) the Holders will agree to not effect any sale or distribution of any equity securities of SPAC held by
any of them until the earliest of (i) the date that is six months from the Closing Date, (ii) the last consecutive trading day where
the sale price of the New SPAC Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends,
reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after the Closing Date
commencing at least 150 days after the date of this Agreement, or (iii) such date on which SPAC completes a liquidation, merger,
capital stock exchange, reorganization or other similar transaction which results in all of the stockholders of SPAC having the
right to exchange their shares of New SPAC Common Stock for cash, securities or other property; in each case as set forth in the
Registration Rights and Lock-Up Agreement.
The foregoing
description of the Registration Rights and Lock-Up Agreement does not purport to be complete and is qualified in its entirety by the terms
and conditions of the Registration Rights and Lock- Up Agreement, the form of which is included as Exhibit A to the Business Combination
Agreement, filed as Exhibit 2.1 hereto and is incorporated by reference herein.
Item 7.01. Regulation FD Disclosure.
On August
8, 2023, Maquia and Immersed issued a joint press release announcing the execution of the Business Combination Agreement. A copy of the
press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
The information
in this Item 7.01, including Exhibit 99.1 attached hereto, is furnished and shall not be deemed “filed” for purposes of Section
18 of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference
into the filings of Maquia under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings.
This Current Report on Form 8-K will not be deemed an admission as to the materiality of any information in this Item 7.01, including
Exhibit 99.1.
Additional Information and
Where to Find It
In connection
with the Business Combination, Maquia intends to file with the SEC a Registration Statement on Form S-4, which will include a preliminary
proxy statement/prospectus of Maquia and consent solicitation statement of Immersed, in connection with the Business Combination and related
matters. After the Registration Statement is declared effective, Maquia and Immersed will mail a definitive proxy statement/prospectus
and other relevant documents to their respective stockholders. This Current Report on Form 8-K does not contain any information that should
be considered by Maquia’s or Immersed’s stockholders concerning the transaction and is not intended to constitute the basis
of any voting or investment decision in respect of the transaction or the securities of Maquia. Maquia's and Immersed’s stockholders
and other interested persons are advised to read, when available, the preliminary proxy statement/prospectus/consent solicitation statement,
and amendments thereto, and definitive proxy statement/prospectus/consent solicitation statement in connection with Maquia's and Immersed
solicitation of proxies for their stockholders' meetings to be held to approve the Business Combination and related matters because the
proxy statement/prospectus/consent solicitation statement will contain important information about Maquia and Immersed and the proposed
Business Combination.
The definitive
proxy statement/prospectus/consent solicitation statement will be mailed to stockholders of Maquia and Immersed as of a record date to
be established for voting on the proposed Business Combination and related matters. Stockholders may obtain copies of the registration
statement, proxy statement/prospectus/consent solicitation statement and all other relevant documents filed or that will be filed with
the SEC by Immersed and Maquia, when available, without charge, at the SEC's website at www.sec.gov or by directing a request to: Maquia
Capital Acquisition Corp., at https://maquiacapital.com/ or a written request to: Jeronimo Peralta, Chief Financial Officer, 50 Biscayne
Boulevard, Suite 2406, Miami, FL 33132.
NEITHER THE SEC NOR ANY STATE
SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THIS PRESS RELEASE, PASSED UPON THE MERITS OR FAIRNESS
OF THE TRANSACTION OR RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PRESS RELEASE. ANY REPRESENTATION
TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
No Offer or Solicitation
This Current
Report on Form 8-K is for informational purposes only and shall not constitute a proxy statement or solicitation of a proxy, consent or
authorization with respect to any securities or in respect of the proposed transaction, neither is it intended to nor does it not constitute
an offer to sell or purchase, nor a solicitation of an offer to sell, buy or subscribe for any securities, nor is it a solicitation of
any vote in any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer of securities
in any jurisdiction in contravention of applicable law. No offer of securities shall be deemed to be made except by means of a prospectus
meeting the requirements of Section 10 of the Securities Act, or an exemption therefrom.
Participants in Solicitation
This Current
Report on Form 8-K is not a solicitation of a proxy from any investor or securityholder. Maquia, Maquia Investments North America LLC
(Maquia's Sponsor), Immersed and their respective directors, officers and other members of their management and employees may be deemed
to be participants in the solicitation of proxies from Maquia's stockholders with respect to the proposed Business Combination and related
matters. Investors and security holders may obtain more detailed information regarding the names, affiliations and interests of the directors
and officers of Maquia or Immersed in the proxy statement/prospectus/consent solicitation statement relating to the proposed Business
Combination when it is filed with the SEC. These documents may be obtained free of charge from the sources indicated below.
Cautionary Statement Regarding Forward-Looking
Statements
Certain
statements in this Current Report on Form 8-K are "forward-looking statements" within the meaning of the "safe harbor"
provisions of the United States Private Securities Litigation Reform Act of 1995. When used in this press release, words such as "may",
"should", "expect", "intend", "will", "estimate", "anticipate", "believe",
"predict", "potential" or "continue", or variations of these words or similar expressions (or the negative
versions of such words or expressions) are intended to identify forward-looking statements. All statements other than statements of historical
fact contained in this press release, including statements regarding the proposed Business Combination, including the proforma enterprise
value and anticipated listing of Immersed on Nasdaq, as well as statements regarding the potential benefits, anticipated market position
and growth potential of Immersed’s existing and future innovative technology and products are forward-looking statements.
These
forward-looking statements and factors that may cause actual results to differ materially from current expectations include, but are
not limited to: the inability of the parties to complete the transactions contemplated by the definitive agreement relating to the
Business Combination in a timely manner or at all; the risk that the Business Combination may not be completed by Maquia's initial
business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by
Maquia; the outcome of any legal proceedings that may be instituted against Maquia or Immersed, the Company or others following the
announcement of the Business Combination and any definitive agreements with respect thereto; the inability to satisfy the conditions
to the consummation of the Business Combination, including the approval of the Business Combination by the stockholders of Maquia;
the occurrence of any event, change or other circumstance that could give rise to the termination of the definitive agreement
relating to the Business Combination; costs related to the proposed transaction; actual or potential conflicts of interest of
Maquia’s management with its public stockholders; changes to the proposed structure of the Business Combination that may be
required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the
Business Combination; the ability to meet stock exchange listing standards following the consummation of the Business Combination;
the effect of the announcement or pendency of the Business Combination on Immersed's business relationships, operating results,
current plans and operations of Immersed; the ability to recognize the anticipated benefits of the Business Combination, which may
be affected by, among other things, competition, the ability of the Company to grow and manage growth profitably, maintain
relationships with customers and suppliers and retain its management and key employees; changes in applicable laws or regulations;
the possibility that Maquia, Immersed or the Company may be adversely affected by other economic, business, and/or competitive
factors; Maquia's or Immersed's estimates of expenses and profitability; expectations with respect to future operating and financial
performance and growth, including the timing of the completion of the proposed Business Combination; Maquia’s and Immersed's
ability to execute on their business plans and strategy; the risk that the price of Macquia’s or the Company’s
securities may be volatile due to a variety of factors, including macro-economic and social environments affecting the
Company’s business and changes in the combined capital structure; the Company’s ability to successfully develop and
integrate its innovative products, including Visor; risks related to the spatial computing software market in general; and other
risks and uncertainties described from time to time in filings with the SEC.
The foregoing list of factors
is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the "Risk
Factors" section of the Registration Statement referenced above and other documents filed by Maquia from time to time with the SEC.
These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially
from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are
cautioned not to put undue reliance on forward-looking statements, and Maquia and Immersed assume no obligation and do not intend to update
or revise these forward-looking statements, whether as a result of new information, future events or otherwise, except as otherwise required
by law. Neither Maquia nor Immersed gives any assurance that Maquia or Immersed, or the Company, will achieve any stated expectations.
Item 9.01. Financial Statements and Exhibits.
Exhibit No. |
Description |
2.1 |
Business Combination Agreement dated as of August 8, 2023, by and among Maquia Capital Acquisition Corporation, Maquia Merger Sub, Inc., and Immersed Inc. |
10.1 |
Stockholder Support Agreement dated August 8, 2023, by and among Immersed, Inc., and the certain stockholders of Immersed and Maquia Capital Acquisition Corporation |
10.2 |
Sponsor Support Agreement dated August 8, 2023, by and among Immersed, Inc., and the Sponsor and the directors and officers of Maquia Capital Acquisition Corporation |
99.1 |
Press Release dated August 8, 2023 |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
Maquia Capital Acquisition Corporation |
Dated: August 9, 2023 |
|
|
|
|
By: |
/s/Jeronimo Peralta |
|
|
Name: Jeronimo Peralta |
|
|
Title: Chief Financial Officer |
Exhibit 2.1
Execution Version
BUSINESS COMBINATION AGREEMENT
by and among
Maquia Capital Acquisition
Corporation,
Maquia Merger Sub, Inc.,
and Immersed Inc.
Dated as of August 8, 2023
Table
of Contents |
|
|
Page |
|
|
ARTICLE
I. DEFINITIONS |
2 |
|
|
Section
1.01 | |
Certain Definitions |
2 |
Section
1.02 | |
Further Definitions |
9 |
Section
1.03 | |
Construction |
11 |
| |
|
|
ARTICLE II. AGREEMENT
AND PLAN OF MERGER |
11 |
|
|
Section
2.01 | |
The Merger |
11 |
Section
2.02 | |
Effective Time; Closing |
11 |
Section
2.03 | |
Effect of the Merger |
12 |
Section
2.04 | |
Certificate of Incorporation;
By-laws |
12 |
Section
2.05 | |
Directors and Officers |
12 |
| |
|
|
ARTICLE III. CONVERSION
OF SECURITIES; EXCHANGE OF CERTIFICATES |
12 |
|
|
Section
3.01 | |
Conversion of Securities |
12 |
Section
3.02 | |
Exchange of Certificates |
14 |
Section
3.03 | |
Stock Transfer Books |
15 |
Section
3.04 | |
Payment of Expenses |
16 |
Section
3.05 | |
Appraisal Rights |
16 |
| |
|
|
ARTICLE IV. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY |
17 |
|
|
Section
4.01 | |
Organization and Qualification;
Subsidiaries |
17 |
Section
4.02 | |
Certificate of Incorporation
and By-laws |
17 |
Section
4.03 | |
Capitalization |
17 |
Section
4.04 | |
Authority Relative to this Agreement |
18 |
Section
4.05 | |
No Conflict; Required Filings
and Consents |
19 |
Section
4.06 | |
Permits; Compliance |
19 |
Section
4.07 | |
Financial Statements |
19 |
Section
4.08 | |
Absence of Certain Changes or
Events |
20 |
Section
4.09 | |
Absence of Litigation |
20 |
Section
4.10 | |
Employee Benefit Plans |
21 |
Section
4.11 | |
Labor and Employment Matters |
22 |
Section
4.12 | |
Real Property; Title to Assets |
23 |
Section
4.13 | |
Intellectual Property |
23 |
Section
4.14 | |
Taxes |
25 |
Section
4.15 | |
Environmental Matters |
27 |
Section
4.16 | |
Material Contracts |
27 |
Section
4.17 | |
Board Approval; Vote Required |
29 |
Section
4.18 | |
Interested Party Transactions |
29 |
Section
4.19 | |
Brokers |
29 |
Section
4.20 | |
Anti-Corruption; Money Laundering |
29 |
Section
4.21 | |
Title to and Sufficiency of
Assets |
30 |
Section
4.22 | |
Insurance |
30 |
Section
4.23 | |
Books and Records |
30 |
Section
4.24 | |
Exclusivity of Representations
and Warranties |
30 |
Section
4.25 | |
Investigation and Reliance |
31 |
Table of Contents |
|
|
Page |
|
|
ARTICLE V. REPRESENTATIONS
AND WARRANTIES OF SPAC AND MERGER SUB |
31 |
|
|
Section
5.01 | |
Corporate Organization |
31 |
Section 5.02 | |
Certificate of Incorporation
and By-laws |
31 |
Section 5.03 | |
Capitalization |
32 |
Section 5.04 | |
Authority Relative to This Agreement |
33 |
Section 5.05 | |
No Conflict; Required Filings
and Consents |
33 |
Section 5.06 | |
Compliance |
33 |
Section 5.07 | |
SEC Filings; Financial Statements;
Sarbanes-Oxley |
34 |
Section 5.08 | |
Absence of Certain Changes or
Events |
35 |
Section 5.09 | |
Absence of Litigation |
35 |
Section 5.10 | |
Board Approval; Vote Required |
35 |
Section 5.11 | |
No Prior Operations of Merger
Sub |
36 |
Section 5.12 | |
Brokers |
36 |
Section 5.13 | |
SPAC Trust Fund |
36 |
Section 5.14 | |
Employees |
37 |
Section 5.15 | |
Taxes |
37 |
Section 5.16 | |
Listing |
39 |
Section 5.17 | |
Investigation and Reliance |
39 |
Section 5.18 | |
Investment Company Act |
39 |
Section 5.19 | |
Takeover Statutes and Charter
Provisions |
39 |
| |
|
|
ARTICLE VI. CONDUCT
OF BUSINESS PENDING THE MERGER |
39 |
|
|
Section 6.01 | |
Conduct of Business by the Company
Pending the Merger |
39 |
Section 6.02 | |
Conduct of Business by SPAC
and Merger Sub Pending the Merger |
41 |
Section 6.03 | |
Claims Against Trust Account |
42 |
| |
|
|
ARTICLE VII. ADDITIONAL
AGREEMENTS |
43 |
|
|
Section 7.01 | |
Proxy Statement; Registration
Statement |
43 |
Section 7.02 | |
SPAC Stockholders’ Meetings;
Merger Sub Stockholder’s Approval |
44 |
Section 7.03 | |
Company Stockholders’
Written Consent |
44 |
Section 7.04 | |
Access to Information; Confidentiality |
44 |
Section 7.05 | |
No Solicitation |
45 |
Section 7.06 | |
Employee Benefits Matters |
46 |
Section 7.07 | |
Directors’ and Officers’
Indemnification; D&O Tail |
47 |
Section 7.08 | |
Notification of Certain Matters |
47 |
Section 7.09 | |
Further Action; Reasonable Best
Efforts |
47 |
Section 7.10 | |
Public Announcements |
48 |
Section 7.11 | |
Tax Matters |
48 |
Section 7.12 | |
Stock Exchange Listing |
48 |
Section 7.13 | |
Antitrust |
48 |
Section 7.14 | |
Trust Account |
49 |
Section 7.15 | |
Stock Incentive Plan |
49 |
Section 7.16 | |
SPAC Extension |
49 |
Section 7.17 | |
Company Convertible Notes |
50 |
Section 7.18 | |
PIPE Financing |
50 |
Table of Contents |
|
|
Page |
|
|
ARTICLE VIII. CONDITIONS
TO THE MERGER |
51 |
|
|
Section
8.01 | |
Conditions to the
Obligations of Each Party |
51 |
Section 8.02 | |
Conditions to the Obligations
of SPAC and Merger Sub |
52 |
Section 8.03 | |
Conditions to the Obligations
of the Company |
53 |
| |
|
|
ARTICLE IX. TERMINATION,
AMENDMENT AND WAIVER |
54 |
|
|
Section 9.01 | |
Termination |
54 |
Section 9.02 | |
Effect of Termination |
55 |
Section 9.03 | |
Expenses |
55 |
Section 9.04 | |
Amendment |
55 |
Section 9.05 | |
Waiver |
55 |
| |
|
|
ARTICLE X. GENERAL
PROVISIONS |
55 |
|
|
Section 10.01 | |
Notices |
55 |
Section 10.02 | |
Nonsurvival of Representations,
Warranties and Covenants |
56 |
Section 10.03 | |
Severability |
56 |
Section 10.04 | |
Entire Agreement; Assignment |
57 |
Section 10.05 | |
Parties in Interest |
57 |
Section 10.06 | |
Governing Law |
57 |
Section 10.07 | |
Waiver of Jury Trial |
57 |
Section 10.08 | |
Headings |
57 |
Section 10.09 | |
Counterparts |
58 |
Section 10.10 | |
Specific Performance |
58 |
EXHIBIT A | |
Form of Registration Rights and Lock-Up Agreement |
EXHIBIT B-1 | |
Form of SPAC Second Amended and Restated Certificate of Incorporation |
EXHIBIT B-2 | |
Form of SPAC Amended and Restated Bylaws |
EXHIBIT C | |
Directors and Officers of the Surviving Corporation and SPAC |
| |
|
SCHEDULE A | |
Company Knowledge Parties |
SCHEDULE B | |
SPAC Knowledge Parties |
SCHEDULE C | |
Key Company Stockholders |
BUSINESS
COMBINATION AGREEMENT, dated as of August 8, 2023 (this “Agreement”), by and among Maquia Capital Acquisition Corporation,
a Delaware corporation (“SPAC”), Maquia Merger Sub, Inc., a Delaware corporation (“Merger Sub”),
and Immersed Inc., a Delaware corporation (the “Company”). SPAC, Merger Sub and the Company are sometimes referred
to individually as a “Party” and, collectively, as “Parties”.
WHEREAS,
Merger Sub is a wholly-owned direct subsidiary of SPAC;
WHEREAS,
upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware
(the “DGCL”), SPAC and the Company will enter into a business combination transaction pursuant to which Merger Sub
will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary
of SPAC;
WHEREAS,
the Board of Directors of the Company (the “Company Board”) has unanimously
(a)
determined that the Merger is fair to, and in the best interests of, the Company and its stockholders and has approved and adopted this
Agreement and declared its advisability and approved the Merger and the other Transactions, and (b) recommended the approval and adoption
of this Agreement and the Merger by the stockholders of the Company;
WHEREAS,
the Board of Directors of SPAC (the “SPAC Board”) has unanimously (a) approved and adopted this Agreement and declared
its advisability and approved the payment of the Merger Consideration to stockholders of the Company pursuant to this Agreement and the
other Transactions, and
(b)
recommended the approval and adoption of this Agreement and the Transactions by the stockholders of SPAC;
WHEREAS,
the Board of Directors of Merger Sub (the “Merger Sub Board”) has unanimously
(a)
determined that the Merger is fair to, and in the best interests of, Merger Sub and its sole stockholder and has approved and adopted
this Agreement and declared its advisability and approved the Merger and the other Transactions, and (b) recommended the approval and
adoption of this Agreement and the Merger by the sole stockholder of Merger Sub;
WHEREAS,
SPAC, as the sole stockholder of Merger Sub, has determined that the Merger is fair to, and in the best interests of, Merger Sub, and
has approved and adopted this Agreement and the Merger;
WHEREAS,
SPAC, the Company and the Key Company Stockholders (as defined herein), concurrently with the execution and delivery of this Agreement,
are entering into the Stockholder Support Agreement, dated as of the date hereof (the “Stockholder Support Agreement”),
providing that, among other things, (a) the Key Company Stockholders will vote their shares of Company Common Stock and Company Preferred
Stock in favor of this Agreement, the Merger and the other Transactions;
WHEREAS,
SPAC, the Company, the Sponsor and the directors and officers of SPAC (together with Sponsor, the “Sponsor Parties”),
concurrently with the execution and delivery of this Agreement, are entering into the Sponsor Support Agreement, dated as of the date
hereof (the “Sponsor Support Agreement”), providing that, among other things, (a) the Sponsor Parties will vote their
shares of SPAC Common Stock in favor of this Agreement and the Transactions, and (b) Sponsor will (i) subject a certain number of its
shares of New SPAC Common Stock to an earnout, (ii) agree to receive repayment of a portion of the working capital loans made by Sponsor
to SPAC in the form of shares of New SPAC Common Stock instead of cash, (iii) waive any anti-dilution provisions for the SPAC Class B
Common Stock as set forth in the SPAC Organizational Documents, (iv) continue to deposit required monthly funding amounts into the Trust
Fund to extend the time for SPAC to consummate its initial business combination until February 7, 2024, and (v) agree to amend the Sponsor
Promissory Notes executed in connection with the Sponsor Debt, in each case, on the terms and subject to the conditions set forth in
the Sponsor Support Agreement;
WHEREAS, in connection with the Closing, SPAC,
certain stockholders of the Company and certain stockholders of SPAC shall enter into an Amended and Restated Registration Rights Agreement
of SPAC (the “Registration Rights and Lock-Up Agreement”), substantially in the form attached hereto as Exhibit A;
and
WHEREAS,
for United States federal income Tax purposes, (a) it is intended that the Merger shall qualify as a reorganization within the meaning
of Section 368(a) of the Code, that the Company, Merger Sub and SPAC are parties to such reorganization within the meaning
of Section 368(b) of the Code and (b) this Agreement is intended to constitute and hereby is adopted as a “plan
of reorganization” with respect to the Merger within the meaning of Treasury Regulations Section 1.368-2(g) for purposes
of Sections 354, 361 and the 368 of the Code (collectively, the “Intended Tax Treatment”).
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Certain
Definitions. For purposes of this Agreement:
“affiliate”
of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, such specified person.
“Aggregate
Transaction Consideration” means a number of shares of New SPAC Common Stock equal to the quotient of (a) the Company
Value divided by (b) the SPAC Redemption Price.
“Ancillary
Agreements” means (a) the Stockholder Support Agreement, (b) the Sponsor Support Agreement, (c) the Registration
Rights and Lock-Up Agreement, and (d) all other agreements, certificates and instruments executed and delivered by SPAC, Merger
Sub or the Company in connection with the Transactions and specifically contemplated by this Agreement.
“Business
Data” means all business information and data, excluding Personal Information, that is accessed, collected, used, processed,
stored, shared, distributed, transferred, disclosed, destroyed, or disposed of by any of the Business Systems, Products or otherwise
in the course of the conduct of the business of the Company as currently conducted.
“Business
Day” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings, or, in the case
of determining a date when any payment is due, any day on which banks are not required or authorized to close in New York, NY.
“Business
Systems” means all Software, computer hardware (whether general or special purpose), electronic data processing, information,
record keeping, communications, telecommunications, networks, interfaces, platforms, servers, peripherals, and computer systems, including
any outsourced systems and processes, that are owned or used in the conduct of the business of the Company.
“Company
Acquisition Proposal” means any proposal or offer from any person or “group” (as defined in the Exchange Act) (other
than SPAC, Merger Sub or their respective affiliates) relating to, in a single transaction or a series of related transactions, (a) any
direct or indirect acquisition or purchase of a business that constitutes 20% or more of the assets of the Company, taken as a whole
(based on the fair market value thereof, as determined by the Company Board in good faith), or (b) acquisition of beneficial ownership
of 20% or more of the total voting power of the equity securities of the Company, whether by way of merger, asset purchase, equity purchase
or otherwise.
“Company Certificate
of Incorporation” means the certificate of incorporation of the Company dated January 4, 2017, as such may have been amended,
supplemented or modified from time to time.
“Company Common
Stock” means the Company’s common stock, with a par value of $0.00001 per share.
“Company
Convertible Notes” means, collectively, the convertible notes issued by the Company to the holders identified therein as set
forth on Section 1.01 of the Company Disclosure Schedule.
“Company IP”
means, collectively, all Company-Owned IP and Company-Licensed IP.
“Company-Licensed
IP” means all Intellectual Property rights owned or purported to be owned by a third party and licensed to the Company or to
which the Company otherwise has a right to use.
“Company
Material Adverse Effect” means any event, circumstance, change or effect that, individually or in the aggregate with all other
events, circumstances, changes and effects, (a) is or would reasonably be expected to be materially adverse to the business, condition
(financial or otherwise), assets, liabilities or results of operations of the Company, taken as a whole, or (b) would prevent, materially
delay or materially impede the performance by the Company of its obligations under this Agreement or the consummation of the Merger and
the other Transactions; provided, however, that none of the following (or the effect of any of the following) shall be
deemed to constitute, alone or in combination, or be taken into account in the determination of whether, there has been or will be a
Company Material Adverse Effect: (i) any change or proposed change in, or change in the interpretation of, any Law or GAAP; (ii) events
or conditions generally affecting the industries or geographic areas in which the Company operates; (iii) any downturn in general
economic conditions, including changes in the credit, debt, securities, financial or capital markets (including changes in interest or
exchange rates, prices of any security or market index or commodity or any disruption of such markets); (iv) acts of war, sabotage,
civil unrest or terrorism, or any escalation or worsening of any such acts of war, sabotage, civil unrest or terrorism, or changes in
global, national, regional, state or local political or social conditions; (v) any hurricane, tornado, flood, earthquake, wild fire
or other natural disaster, epidemic, disease outbreak, pandemic, or acts of God, (vi) any actions taken or not taken by the Company
as required by this Agreement or any Ancillary Agreement, (vii) any effect attributable to the announcement or execution, pendency,
negotiation or consummation of the Merger or any of the other Transaction (including the impact thereof on relationships with customers,
suppliers, employees or Governmental Authorities), (viii) any failure to meet any projections, forecasts, guidance, estimates, milestones,
budgets or financial or operating predictions, provided that this clause (viii) shall not prevent a determination that any change,
event, or occurrence underlying such failure has resulted in a Company Material Adverse Effect or (ix) any actions taken, or failures
to take action, or such other changed or events, in each case, which SPAC has requested or to which it has consented or which actions
are contemplated by this Agreement, except in the cases of clauses (i) through (v), to the extent that the Company is disproportionately
affected thereby as compared to other participants in the industries in which the Company operates.
“Company
Equity Plan” means the 2017 Stock Option Plan, as such may have been amended, supplemented or modified from time to time.
“Company
Option” means an option to purchase a share of Company Common Stock, whether or not exercisable and whether or not vested,
granted under the Company Equity Plan or otherwise, that are outstanding immediately prior to the Closing.
“Company-Owned
IP” means all Intellectual Property rights owned or purported to be owned by the Company.
“Company
Preferred Stock” means the shares of the Company’s Series 1 convertible preferred stock, par value $0.00001 per
share.
“Company
Stockholder Requisite Approval” means the affirmative vote of the holders of at least (a) a majority of the outstanding
shares of the Company Common Stock and Company Preferred Stock voting together as a single class and on an as-converted to Company Common
Stock basis, and (b) a majority of the outstanding shares of Company Preferred Stock voting as a separate class on an as-converted
to Company Common Stock basis.
“Company
Value” means an amount equal to $150,000,000.
“Confidential
Information” means any information, knowledge or data concerning the businesses and affairs of the Company or any Suppliers
or customers of the Company or SPAC or its subsidiaries (as applicable) that is not already generally available to the public, including
any Intellectual Property rights.
“control”
(including the terms “controlled by” and “under common control with”) means the possession, directly
or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, as trustee or executor, by contract or otherwise.
“Disabling
Devices” means undisclosed Software viruses, time bombs, logic bombs, trojan horses, trap doors, back doors, or other computer
instructions, intentional devices or techniques that are designed to threaten, infect, assault, vandalize, defraud, disrupt, damage,
disable, maliciously encumber, hack into, incapacitate, infiltrate or slow or shut down a computer system or any component of such computer
system, including any such device affecting system security or compromising or disclosing user data in an unauthorized manner.
“Environmental
Laws” means any United States federal, state or local or non-United States laws relating to: (a) releases or threatened
releases of Hazardous Substances; (b) the manufacture, handling, transport, use, treatment, storage or disposal of Hazardous Substances;
or (c) pollution or protection of the environment or natural resources.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“GAAP”
means generally accepted accounting principles in the United States, as in effect from time to time.
“Hazardous
Substance(s)” means: (a) those substances defined in or regulated under the following United States federal statutes and
their state counterparts, as each may be amended from time to time, and all regulations thereunder: the Hazardous Materials Transportation
Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean
Water Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal Insecticide, Fungicide, and Rodenticide Act and the Clean
Air Act; (b) petroleum and petroleum products, including crude oil and any fractions thereof; (c) natural gas, synthetic gas,
and any mixtures thereof; (d) polychlorinated biphenyls and asbestos; and (e) any substance, material or waste regulated as
hazardous or toxic, or as a pollutant or contaminant, by any Governmental Authority pursuant to any Environmental Law due to its deleterious
properties.
“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Indebtedness”
means with respect to any Person, without duplication, any obligations, contingent or otherwise, in respect of (a) the outstanding
principal of and premium (if any) in respect of all indebtedness for borrowed money of such Person, including accrued and unpaid interest
and any per diem interest accruals, (b) amounts drawn (including any accrued and unpaid interest) on letters of credit, bank guarantees,
bankers’ acceptances and other similar instruments (solely to the extent such amounts have actually been drawn) under which such
Person is the applicant or guaranteed party, (c) the outstanding principal of and premium (if any) in respect of obligations evidenced
by bonds, debentures, notes and similar instruments of such Person, (d) unpaid breakage costs, prepayment or early termination premiums,
penalties, or other fees or expenses payable by such Person as a result of the consummation of the Transactions in respect of any of
the items in the foregoing clauses (a) through (c), and (e) all Indebtedness of another Person referred to in clauses (a) through
(d) above guaranteed directly or indirectly, jointly or severally by such Person.
“Intellectual
Property” means: (a) patents, patent applications and patent disclosures, together with all reissues, continuations, continuations-in-part,
divisionals, revisions, extensions or reexaminations thereof (“Patents”); (b) trademarks and service marks, trade
dress, logos, trade names, corporate names, brands, slogans, and other source identifiers together with all translations, adaptations,
derivations, combinations and other variants of the foregoing, and all applications, registrations, and renewals in connection therewith,
together with all of the goodwill associated with the foregoing (“Trademarks”);
(c) copyrights and
registrations and applications for registration, renewals and extensions thereof (“Copyrights”) and other works of
authorship (whether or not copyrightable) and moral rights; (d) trade secrets and know-how (including ideas, formulas, compositions,
inventions (whether or not patentable or reduced to practice)), customer and supplier lists, improvements, protocols, processes, methods
and techniques, research and development information, industry analyses, algorithms, architectures, layouts, drawings, specifications,
designs, plans, methodologies, proposals, industrial models, technical data, financial and accounting and all other data, databases,
database rights, including rights to use any Personal Information, pricing and cost information, business and marketing plans and proposals,
and customer and supplier lists (including lists of prospects) and related information; (e) Internet domain names and social media
accounts; (f) rights of privacy and publicity; (g) all mask works, mask work registrations and applications therefore, and
any equivalent or similar rights; (h) all other intellectual property or proprietary rights of any kind or description; (i) copies
and tangible embodiments of any of the foregoing, in whatever form or medium; and (j) all legal rights arising from items (a) through
(h), including the right to prosecute and perfect such interests and rights to sue, oppose, cancel, interfere and enjoin based upon such
interests, including such rights based on past infringement, if any, in connection with any of the foregoing.
“Key
Company Stockholders” means the persons and entities listed on Schedule C.
“knowledge”
or “to the knowledge” of a person shall mean in the case of the Company, the actual knowledge of the persons listed
on Schedule A after reasonable inquiry, and in the case of SPAC, the actual knowledge of the persons listed on Schedule B
after reasonable inquiry.
“Leased
Real Property” means the real property leased by the as tenant, together with, to the extent leased by the Company, all buildings
and other structures, facilities or improvements located thereon and all easements, licenses, rights and appurtenances of the Company
relating to the foregoing.
“Lien”
means any lien, security interest, mortgage, pledge, adverse claim or other encumbrance of any kind that secures the payment or performance
of an obligation (other than those created under applicable securities laws.
“Merger
Sub Organizational Documents” means the certificate of incorporation and by-laws of Merger Sub, as amended, modified or supplemented
from time to time.
“Nasdaq”
means The Nasdaq Stock Market LLC.
“New
SPAC Common Stock” means the common stock of SPAC, par value $0.0001 per share, as set forth in the SPAC Second Amended and
Restated Certificate of Incorporation.
“Open
Source Software” means any Software that is licensed pursuant to: (a) any license that is a license approved by the open
source initiative and listed at http://www.opensource.org/licenses, which licenses include all versions of the GNU General Public
License (GPL), the GNU Lesser General Public License (LGPL), the GNU Affero GPL, the MIT license, the Eclipse Public License, the Common
Public License, the CDDL, the Mozilla Public License (MPL), the Artistic License, the Netscape Public License, the Sun Community Source
License (SCSL), and the Sun Industry Standards License (SISL); or (b) any license to Software that is considered “free”
or “open source software” by the open source foundation or the free software foundation.
“Permitted
Liens” means: (a) such imperfections of title, easements, encumbrances, Liens or restrictions that do not materially impair
the current use of the Company’s assets that are subject thereto; (b) materialmen’s, mechanics’, carriers’,
workmen’s, warehousemen’s, repairmen’s, landlord’s and other similar Liens arising in the ordinary course of
business, or deposits to obtain the release of such Liens; (c) Liens for Taxes not yet due and payable, or being contested in good
faith; (d) zoning, entitlement, conservation restriction and other land use and environmental regulations promulgated by Governmental
Authorities, (e) non-exclusive licenses, or sublicenses to Intellectual Property owned by or licensed to the Company granted to
any licensee in the ordinary course of business; (f) non-monetary Liens, encumbrances and restrictions on real property (including
easements, covenants, rights of way and similar restrictions of record) that do not materially interfere with the present uses of such
real property, and (g) Liens on leases, subleases, easements, licenses, rights of use, rights to access and rights of way arising
from the provisions of such agreements or benefiting or created by any superior estate, right or interest.
“person”
means an individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without
limitation, a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government,
political subdivision, agency or instrumentality of a government.
“Personal
Information” means (a) information related to an identified or identifiable individual (e.g., name, address telephone
number, email address, financial account number, government-issued identifier), (b) any other data used or intended to be used or
which reasonably allows one to identify, contact, or precisely locate an individual, including any internet protocol address or other
persistent identifier, and (c) any other, similar information or data, each to the extent defined as “personal data,”
“personal information,” “personally identifiable information” or similar terms by applicable Privacy/Data Security
Laws.
“PIPE
Financing” means purchases of shares of SPAC Class A Common Stock on the Closing Date and immediately prior to the Closing
by one or more investors pursuant to Section 7.21.
“PIPE
Financing Proceeds” means cash proceeds to be funded by investors participating in the PIPE Financing immediately prior to
or concurrently with the Closing to SPAC pursuant to the PIPE Subscription Agreements.
“PIPE
Financing Subscription Agreement” means a subscription agreement executed by an investor and SPAC after the date hereof pursuant
to which such investor has agreed to purchase for cash shares of SPAC Class A Common Stock from SPAC on the Closing Date and immediately
prior to the Closing pursuant to Section 7.21.
“Privacy/Data
Security Laws” means all laws governing the receipt, collection, use, storage, processing, sharing, security, disclosure, or
transfer of Personal Information or the security of Personal Information.
“Products”
mean any products or services, designed, developed, manufactured, performed, licensed, sold, distributed other otherwise made available
by or on behalf of the Company from which the Company has derived previously, or, is currently deriving, revenue from the sale or provision
thereof.
“Regulation
S-K” means Regulation S-K promulgated under the Securities Act.
“Regulation
S-X” means Regulation S-X promulgated under the Exchange Act.
“Software”
means all computer software (in object code or source code format), data and databases, and related documentation and materials.
“SPAC Certificate
of Incorporation” means the Amended and Restated SPAC Certificate of Incorporation dated May 4, 2021, as amended.
“SPAC
Class A Common Stock” means SPAC’s Class A common stock, par value $0.0001 per share.
“SPAC
Class B Common Stock” means SPAC’s Class B common stock, par value $0.0001 per share.
“SPAC
Common Stock” means SPAC Class A Common Stock and SPAC Class B Common Stock.
“SPAC
Material Adverse Effect” means any event, circumstance, change or effect that, individually or in the aggregate with all other
events, circumstances, changes and effects, (a) is or would reasonably be expected to be materially adverse to the business, condition
(financial or otherwise), assets, liabilities or results of operations of SPAC; or (b) would prevent, materially delay or materially
impede the performance by SPAC or Merger Sub of their respective obligations under this Agreement or the consummation of the Merger and
the other Transactions; provided, however, that none of the following (or the effect of any of the following) shall be
deemed to constitute, alone or in combination, or be taken into account in the determination of whether, there has been or will be an
SPAC Material Adverse Effect: (i) any change or proposed change in or change in the interpretation of any Law or GAAP; (ii) events
or conditions generally affecting the industries or geographic areas in which SPAC operates; (iii) any downturn in general economic
conditions, including changes in the credit, debt, securities, financial or capital markets (including changes in interest or exchange
rates, prices of any security or market index or commodity or any disruption of such markets); (iv) acts of war, sabotage, civil
unrest or terrorism, or any escalation or worsening of any such acts of war, sabotage, civil unrest or terrorism, or changes in global,
national, regional, state or local political or social conditions; (v) any hurricane, tornado, flood, earthquake, wild fire or other
natural disaster, epidemic, disease outbreak, pandemic, or acts of God, (vi) any actions taken or not taken by SPAC as required
by this Agreement or any Ancillary Agreement, (vii) any effect attributable to the announcement or execution, pendency, negotiation
or consummation of the Merger or any of the other Transaction, (viii) any actions taken, or failures to take action, or such other
changed or events, in each case, which the Company has requested or to which it has consented or which actions are contemplated by this
Agreement, or (ix) the consummation and effects of any exercise of SPAC Redemption Rights by stockholders of SPAC provided for in
the SPAC Organizational Documents, except, in the cases of clauses (i) through (v), to the extent that SPAC is disproportionately
affected thereby as compared with other participants in the industry in which SPAC operate.
“SPAC
Organizational Documents” means the SPAC Certificate of Incorporation, by-laws, and Trust Agreement of SPAC, in each case as
amended, modified or supplemented from time to time.
“SPAC
Redemption Price” means an amount equal to the price at which each share of SPAC Class A Common Stock is redeemed pursuant
to the SPAC Redemption Rights (as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations and the like
prior to the applicable redemption or conversion).
“SPAC
Redemption Rights” means the redemption rights provided for in Section 9.2(a) of the SPAC Certificate of Incorporation.
“SPAC
Units” means one share of SPAC Common Stock and one-half of one SPAC Warrant.
“SPAC
Warrant Agreement” means that certain warrant agreement dated May 4, 2021, by and between SPAC and Continental Stock Transfer &
Trust Company.
“SPAC
Warrants” means warrants to purchase shares of SPAC Class A Common Stock as contemplated under the SPAC Warrant Agreement,
with each warrant exercisable for one share of SPAC Class A Common Stock at an exercise price of $11.50.
“Sponsor”
means Maquia Investments North America, LLC.
“Sponsor
Debt” means the working capital and extension loans made by Sponsor to SPAC in the amount of (a) USD $ 3,461,943.80 pursuant
to the promissory note dated August 4, 2022; (b) USD $ 955,748 pursuant to the promissory note dated November 14, 2022;
(c) USD $ 245,411.55 pursuant to the promissory note dated May 22, 2023; (d) USD $ 250,000.00 pursuant to the promissory
note dated May 22, 2023; and (e) USD $ 150,000.00 pursuant to the promissory note dated July 27, 2023.
“Sponsor
Promissory Notes” means the following promissory notes issued to Sponsor by SPAC in connection with the Sponsor Debt: (a) promissory
note dated August 4, 2022 , (b) promissory note dated November 14, 2022; (c) promissory note dated May 22, 2023;
(d) promissory note dated May 22, 2023; and (e) promissory note dated July 27, 2023.
“subsidiary”
or “subsidiaries” of the Company, the Surviving Corporation, SPAC or any other person means an affiliate controlled
by such person, directly or indirectly, through one or more intermediaries.
“Supplier”
means any person that supplies inventory or other materials or personal property, components, or other goods or services that are utilized
in or comprise the Products of the Company.
“Technology”
means all designs, formulas, algorithms, procedures, techniques, methods, processes, concepts, ideas, know-how, programs, models, routines,
data, databases, tools, inventions, creations, improvements and all recordings, graphs, drawings, reports, analyses, other writings,
and any other embodiment of the above, in any form, whether or not specifically listed herein.
“Transaction
Documents” means this Agreement, including all Schedules and Exhibits hereto, the Company Disclosure Schedule, the Ancillary
Agreements, and all other agreements, certificates and instruments executed and delivered by SPAC, Merger Sub or the Company in connection
with the Transaction and specifically contemplated by this Agreement.
“Transactions”
means the transactions contemplated by this Agreement and the Transaction Documents.
“Treasury
Regulations” means the United States Treasury regulations issued pursuant to the Code.
Section 1.02 Further
Definitions. The following terms have the meaning set forth in the Sections set forth below:
Defined Term | |
Location of Definition |
2023 Balance Sheet | |
§4.07(b) |
Action | |
§4.09 |
Agreement | |
Preamble |
Antitrust Laws | |
§7.13(a) |
Blue Sky Laws | |
§4.05(b) |
Business Combination Proposal | |
§7.05(b) |
Certificate of Merger | |
§2.02(a) |
Certificates | |
§3.02(b) |
Claims | |
§6.03 |
Closing | |
§2.02(b) |
Closing Date | |
§2.02(b) |
Code | |
§3.02(h) |
Company | |
Preamble |
Company Board | |
Recitals |
Company Disclosure Schedule | |
ArticleIV |
Company Permits | |
§4.06 |
Confidentiality Agreement | |
§7.04(b) |
Continuing Employees | |
§7.06(a) |
Data Security Requirements | |
§4.13(h) |
DGCL | |
Recitals |
Dissenting Shares | |
§3.05(a) |
D&O Tail | |
§7.07(b) |
Effective Time | |
§2.02(a) |
Environmental Permits | |
§4.15 |
ERISA | |
§4.10(a) |
ERISA Affiliate | |
§4.10(c) |
Exchange Agent | |
§3.02(a) |
Exchange Fund | |
§3.02(a) |
Exchanged Options | |
§3.01(b)(iv) |
Financial Statements | |
§4.07(a) |
Governmental Authority | |
§4.05(b) |
Health Plan | |
§4.10(j) |
Intended Tax Treatment | |
Recitals |
Interim Period | |
§6.01(a) |
Defined Term | |
Location of Definition |
IRS | |
§4.10(b) |
Law | |
§4.05(a) |
Lease | |
§4.12(a) |
Lease Documents | |
§4.12(a) |
Letter of Transmittal | |
§3.02(b) |
Material Contracts | |
§4.16(a) |
Merger | |
Recitals |
Merger Consideration | |
§3.01(b)(i) |
Merger Sub | |
Preamble |
Merger Sub Board | |
Recitals |
Merger Sub Common Stock | |
§5.03(b) |
Outside Date | |
§9.01(b) |
Outstanding Company Transaction Expenses | |
§3.04(a) |
Outstanding SPAC Transaction Expenses | |
§3.04(b) |
Party; Parties | |
Preamble |
Payment Spreadsheet | |
§3.01(a) |
Plans | |
§4.10(a) |
PPACA | |
§4.10(j) |
Proxy Statement | |
§7.01(a) |
Registered IP | |
§4.13(a) |
Registration Rights and Lock-Up Agreement | |
Recitals |
Registration Statement | |
§7.01(a) |
Remedies Exceptions | |
§4.04 |
Representatives | |
§7.04(a) |
SEC | |
§5.07(a) |
Securities Act | |
§5.07(a) |
Service Agreements | |
§4.10(a) |
SPAC | |
Preamble |
SPAC Amended and Restated Bylaws | |
§2.04(c) |
SPAC Board | |
Recitals |
SPAC Business Combination Deadline | |
§7.16(a) |
SPAC Extension | |
§7.16 |
SPAC Extension Proxy Statement | |
§7.16(a) |
SPAC Preferred Stock | |
§5.03(a) |
SPAC Proposals | |
§7.01(a) |
SPAC SEC Reports | |
§5.07(a) |
SPAC Second Amended and Restated Certificate
of Incorporation | |
§2.04(c) |
SPAC Stockholders’ Meeting | |
§7.01(a) |
Stand Alone Option | |
§4.03(a) |
Stock Incentive Plan | |
§7.15 |
Stockholder Support Agreement | |
Recitals |
Surviving Corporation | |
§2.01 |
Tax | |
§4.14(m) |
Tax Return | |
§4.14(m) |
Terminating Company Breach | |
§9.01(f) |
Terminating SPAC Breach | |
§9.01(g) |
Trust Account | |
§5.13 |
Trust Agreement | |
§5.13 |
Trust Fund | |
§5.13 |
Trustee | |
§5.13 |
Written Consent | |
§7.03 |
Section 1.03 Construction.
(a) Unless
the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using the singular
or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,”
“hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (iv) the terms “Article,”
“Section,” “Schedule” and “Exhibit” refer to the specified Article, Section, Schedule or Exhibit of
or to this Agreement, (v) the word “including” means “including without limitation,” (vi) the word
“or” shall be disjunctive but not exclusive, (vii) references to agreements and other documents shall be deemed to include
all subsequent amendments and other modifications thereto and (viii) references to statutes shall include all regulations promulgated
thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating,
amending or replacing the statute or regulation.
(b) The
language used in this Agreement 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 Party.
(c) Whenever
this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action
is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred
until the next Business Day.
(d) All
accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.
ARTICLE II.
AGREEMENT AND PLAN OF
MERGER
Section 2.01
The Merger. Upon the terms and subject to the conditions set forth
in Article VIII, and in accordance with the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As
a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation
of the Merger (the “Surviving Corporation”).
Section 2.02 Effective
Time; Closing.
(a) As
promptly as practicable, but in no event later than three (3) Business Days, after the satisfaction or, if permissible, waiver of
the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing,
it being understood that the occurrence of the Closing shall remain subject to the satisfaction or, if permissible, waiver of such conditions
at the Closing), the Parties shall cause the Merger to be consummated by filing a certificate of merger (a “Certificate of Merger”)
with the Secretary of State of the State of Delaware, in such form as is required by, and executed in accordance with, the relevant provisions
of the DGCL and mutually agreed by the Parties (the date and time of the filing of such Certificate of Merger (or such later time as
may be agreed by each of the Parties and specified in such Certificate of Merger) being the “Effective Time”).
(b) Immediately
prior to such filing of a Certificate of Merger in accordance with Section 2.02(a), a closing (the “Closing”)
shall take place remotely by electronic exchange of executed documents for
the purpose of confirming the satisfaction or waiver, as the case may be, of the conditions set forth in Article VIII. The
date on which the Closing shall occur is referred to herein as the “Closing Date.”
Section 2.03
Effect of the Merger. At the Effective Time, the effect of the Merger
shall be as provided in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto,
at the Effective Time, all the property, rights, privileges, immunities, powers, franchises, licenses and authority of the Company and
Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions, disabilities and duties of
each of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities and duties of the Surviving
Corporation.
Section 2.04 Certificate
of Incorporation; By-laws.
(a) At
the Effective Time, the Company Certificate of Incorporation, as in effect immediately prior to the Effective Time, shall be the certification
of incorporation of the Surviving Corporation, until thereafter amended as provided by law and such certificate of incorporation. After
the Effective Time, the Company shall cause the certificate of incorporation of the Surviving Corporation to be amended and restated
in its entirety in a form as shall be mutually agreed by the Parties.
(b) At
the Effective Time, the by-laws of the Company, as in effect immediately prior to the Effective Time, shall be the by-laws of the Surviving
Corporation until thereafter amended as provided by law, the certificate of incorporation of the Surviving Corporation and such by-laws,
as applicable.
(c) At
the Closing, SPAC shall amend and restate, effective as of the Effective Time, (i) the SPAC Amended and Restated Certificate of
Incorporation to be as set forth on Exhibit B-1 (the “SPAC Second Amended and Restated Certificate of Incorporation”),
and (ii) the bylaws of SPAC to be as set forth on Exhibit B-2.
Section 2.05 Directors
and Officers.
(a) The
initial directors of the Surviving Corporation and the initial officers of the Surviving Corporation shall be the individuals set forth
on Exhibit C hereto, which all such initial directors and initial officers of the Surviving Corporation shall be designated
by the Company, each to hold office in accordance with the certificate of incorporation and by-laws of the Surviving Corporation.
(b) The
Parties shall cause the SPAC Board and the initial officers of SPAC as of immediately following the Effective Time to be comprised of
the individuals set forth on Exhibit C hereto, which all such initial directors of the SPAC Board and initial officers of
SPAC shall be designated by the Company, each to hold office in accordance with the SPAC Certificate of Incorporation and the by-laws
of SPAC. SPAC shall initially have the right to designate one (1) board observer to the SPAC Board.
ARTICLE III.
CONVERSION OF SECURITIES;
EXCHANGE OF CERTIFICATES
Section 3.01 Conversion
of Securities.
(a) Payment
Spreadsheet. Not less than five (5) Business Days prior to the Effective Time, the Company shall deliver to SPAC a schedule
(the “Payment Spreadsheet”) setting forth (i) the calculation of Aggregate Transaction Consideration, (ii) the
allocation of the Aggregate Transaction Consideration among the holders of Company Common Stock, Company Preferred Stock and Company
Options, (iii) the portion of Aggregate Transaction Consideration
payable to each holder of Company Common Stock and Company Preferred Stock and (iv) the number of shares of New SPAC Common Stock
that can be purchased under the Exchanged Options. The allocation of the Aggregate Transaction Consideration and the information with
respect to the exchange of Company Options into Exchanged Options set forth in the Payment Spreadsheet shall be binding on all Parties
and shall be used by SPAC and Merger Sub for purposes of issuing the Merger Consideration to the holders of Company Common Stock and
Company Preferred Stock and conversion of the Company Options into the Exchanged Options pursuant to this Article III, absent
manifest error.
(b) At
the Effective Time, by virtue of the Merger and without any action on the part of SPAC, Merger Sub, the Company or the holders of any
of the following securities:
(i) all
shares of Company Common Stock and Company Preferred Stock issued and outstanding immediately prior to the Effective Time (excluding
Dissenting Shares) shall be canceled and converted into the right to receive, in accordance with the Payment Spreadsheet, the number
of shares of New SPAC Common Stock set forth in the Payment Spreadsheet (the “Merger Consideration”), with each holder
of Company Common Stock and Company Preferred Stock to receive the right to receive the number of shares of New SPAC Common Stock set
forth opposite such holder’s name as set forth on the Payment Spreadsheet;
(ii) all
shares of Company Common Stock and Company Preferred Stock held in the treasury of the Company shall be canceled without any conversion
thereof and no payment or distribution shall be made with respect thereto;
(iii) each
share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation;
and
(iv) the
Company Options that are outstanding immediately prior to the Effective Time, whether vested or unvested, shall be converted into options
to purchase shares of New SPAC Common Stock (such options, the “Exchanged Options”) in accordance with the Payment
Spreadsheet, with each holder of Company Options to receive options to purchase the number of shares of New SPAC Common Stock set forth
opposite such holder’s name on the Payment Spreadsheet; provided that the exercise price and the number of shares of New SPAC Common
Stock purchasable pursuant to the Exchanged Options shall be determined in a manner consistent with the requirements of Treasury Regulation
Section 1.409A-1(b)(5)(v)(D) and, provided further, that in the case of any Exchanged Option to which Section 422 of the
Code applies, the exercise price and the number of shares of New SPAC Common Stock purchasable pursuant to the Exchanged Options shall
be subject to such adjustments as are necessary in order to satisfy the requirements of Treasury Regulation Section 1.424-1(a).
Except as specifically provided above, following the Effective Time, the Exchanged Options shall continue to be governed by the same
terms and conditions (including vesting and exercisability terms) as were applicable to the corresponding former Company Option(s) immediately
prior to the Effective Time. At or prior to the Effective Time, the Parties and their respective boards, as applicable, shall adopt any
resolutions and take any actions that are necessary to effectuate the treatment of the Company Options pursuant to this subsection.
Section 3.02 Exchange
of Certificates.
(a) Exchange
Agent. On the Closing Date, SPAC shall deposit, or shall cause to be deposited, with a bank or trust company that shall be designated
by SPAC and is reasonably satisfactory to the Company (the “Exchange Agent”), it being agreed that Continental Stock
Transfer & Trust Company is satisfactory to all Parties, for the benefit of the holders of Company Common Stock and Company
Preferred Stock, for exchange in accordance with this Article III, the number of shares of New SPAC Common Stock sufficient
to deliver the aggregate Merger Consideration payable pursuant to this Agreement (such shares of New SPAC Common Stock, together with
any dividends or distributions with respect thereto pursuant to Section 3.02(c), being hereinafter referred to as the “Exchange
Fund”). SPAC shall cause the Exchange Agent pursuant to irrevocable instructions, to pay the Merger Consideration out of the
Exchange Fund in accordance with this Agreement. Except as contemplated by Section 3.02(c) hereof, the Exchange Fund shall
not be used for any other purpose.
(b) Exchange
Procedures. As promptly as practicable after the date hereof, SPAC shall use its reasonable best efforts to cause the Exchange Agent
to mail to each holder of Company Common Stock and Company Preferred Stock entitled to receive the Merger Consideration pursuant to Section 3.01
a letter of transmittal, which shall be in a form reasonably acceptable to SPAC and the Company (the “Letter of Transmittal”)
and shall specify (i) that delivery shall be effected, and risk of loss and title to the certificates evidencing such shares of
Company Common Stock and Company Preferred Stock (the “Certificates”) shall pass, only upon proper delivery of the
Certificates to the Exchange Agent or confirmation of cancellation of such Certificates from the Company’s transfer agent; and
(ii) instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within two (2) Business
Days (but in no event prior to the Effective Time) after the surrender to the Exchange Agent of all Certificates held by such holder
for cancellation, together with a Letter of Transmittal, duly completed and validly executed in accordance with the instructions thereto
and such other documents as may be required pursuant to such instructions, the holder of such Certificates shall be entitled to receive
in exchange therefore, and SPAC shall cause the Exchange Agent to deliver, the Merger Consideration in accordance with the provisions
of Section 3.01, and the Certificate so surrendered shall forthwith be cancelled. Until surrendered as contemplated by this Section 3.02,
each Certificate entitled to receive the Merger Consideration in accordance with Section 3.01 shall be deemed at all times after
the Effective Time to represent only the right to receive upon such surrender the Merger Consideration that such holder is entitled to
receive in accordance with the provisions of Section 3.01.
(c) Distributions
with Respect to Unexchanged Shares of New SPAC Common Stock. No dividends or other distributions declared or made after the Effective
Time with respect to the New SPAC Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of New SPAC Common Stock represented thereby until the holder of such Certificate shall surrender
such Certificate in accordance with Section 3.02(b). Subject to the effect of escheat, Tax or other applicable Laws, following
surrender of any such Certificate, SPAC shall pay or cause to be paid to the holder of the certificates representing shares of New SPAC
Common Stock issued in exchange therefore, without interest, (i) promptly, but in any event within five (5) Business Days of
such surrender, the amount of dividends or other distributions with a record date after the Effective Time and theretofore paid with
respect to such shares of New SPAC Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions,
with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect
to such shares of New SPAC Common Stock.
(d) No
Further Rights in Company Common Stock and Company Preferred Stock. The Merger Consideration payable upon conversion of the Company
Common Stock and Company Preferred Stock in accordance with the terms hereof shall be deemed to have been paid and issued in full satisfaction
of all rights pertaining to such Company Common Stock and Company Preferred Stock.
(e) Adjustments
to Merger Consideration. The Merger Consideration shall be adjusted to reflect appropriately the effect of any stock split, reverse
stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change
with respect to New SPAC Common Stock occurring on or after the date hereof and prior to the Effective Time.
(f) Termination
of Exchange Fund. Any portion of the Exchange Fund that remains undistributed to the holders of Company Common Stock and Company
Preferred Stock for one year after the Effective Time shall be delivered to SPAC, upon demand, and any holders of Company Common Stock
and Company Preferred Stock who have not theretofore complied with this Section 3.02 shall thereafter look only to SPAC for
the Merger Consideration. Any portion of the Exchange Fund remaining unclaimed by holders of Company Common Stock and Company Preferred
Stock as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any government
entity shall, to the extent permitted by applicable law, become the property of SPAC free and clear of any claims or interest of any
person previously entitled thereto.
(g) No
Liability. None of the Exchange Agent, SPAC or the Surviving Corporation shall be liable to any holder of Company Common Stock or
Company Preferred Stock for any such Company Common Stock or Company Preferred Stock (or dividends or distributions with respect thereto)
or cash delivered to a public official pursuant to any abandoned property, escheat or similar Law in accordance with Section 3.02.
(h) Withholding
Rights. Each of the Surviving Corporation and SPAC shall be entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Company Common Stock or Company Preferred Stock such amounts as it is required to deduct
and withhold with respect to the making of such payment under the United States Internal Revenue Code of 1986, as amended (the “Code”)
or any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld by the Surviving Corporation or SPAC,
as the case may be, and timely remitted to the appropriate taxing authority, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of the Company Common Stock or Company Preferred Stock (or intended recipients of
compensatory payments) in respect of which such deduction and withholding was made by the Surviving Corporation or SPAC, as the case
may be. Notwithstanding the foregoing, prior to withholding or deducting any amounts hereunder from any consideration payments other
than consideration payments that are treated for tax purposes as compensation for the performance of services, the party intending to
withhold or deduct such amounts shall reasonably cooperate with and provide a reasonable opportunity to the payee to provide forms, documentation
or other evidence that would exempt such payments from withholding or deductions or reduce or minimize the amount of any such withholding
or deduction under applicable Law.
(i) Lost
Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent will issue in exchange for such lost, stolen or destroyed
Certificate, the Merger Consideration that such holder is otherwise entitled to receive pursuant to, and in accordance with, the provisions
of Section 3.01.
Section 3.03
Stock Transfer Books. At the Effective Time, the stock transfer books
of the Company shall be closed and there shall be no further registration of transfers of Company Common Stock or Company Preferred Stock
thereafter on the records of the Company. From and after the Effective Time, the holders of Certificates representing Company Common
Stock or Company Preferred Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such
Company Common Stock and Company Preferred Stock, except as otherwise provided in this Agreement or by Law. On or after the Effective
Time, any Certificates presented to the Exchange Agent or SPAC for any reason shall be converted into the Merger Consideration in accordance
with the provisions of Section 3.01.
Section 3.04 Payment
of Expenses.
(a) No
sooner than five (5) or later than two (2) Business Days prior to the Closing Date, the Company shall provide to SPAC a written
report setting forth a list of all of the following fees and expenses incurred by or on behalf of the Company in connection with the
preparation, negotiation and execution of this Agreement and the consummation of the Transactions (together with written invoices and
wire transfer instructions for the payment thereof), solely to the extent such fees and expenses are incurred and expected to remain
unpaid as of the close of business on the Business Day immediately preceding the Closing Date: (i) the fees and disbursements of
outside counsel to the Company incurred in connection with the Transactions and (ii) the fees and expenses of any other agents,
advisors, consultants, experts, financial advisors and other service providers engaged by the Company in connection with the Transactions
(collectively, the “Outstanding Company Transaction Expenses”). On the Closing Date following the Closing, SPAC shall
pay or cause to be paid by wire transfer of immediately available funds all such Outstanding Company Transaction Expenses.
(b) No
sooner than five (5) or later than two (2) Business Days prior to the Closing Date, SPAC shall provide to the Company a written
report setting forth a list of all fees, expenses and disbursements incurred by or on behalf of SPAC or Merger Sub for outside counsel,
agents, advisors, consultants, experts, financial advisors and other service providers engaged by or on behalf of SPAC or Merger Sub
in connection with the Transactions or otherwise in connection with SPAC’s operations (together with written invoices and wire
transfer instructions for the payment thereof) (collectively, the “Outstanding SPAC Transaction Expenses”). On the
Closing Date following the Closing, SPAC shall pay or cause to be paid by wire transfer of immediately available funds all such Outstanding
SPAC Transaction Expenses.
(c) SPAC
shall not pay or cause to be paid any Outstanding SPAC Transaction Expenses or Outstanding Company Transaction Expenses other than in
accordance with this Section 3.04.
Section 3.05 Appraisal
Rights.
(a) Notwithstanding
any provision of this Agreement to the contrary and to the extent available under the DGCL, shares of Company Common Stock and Company
Preferred Stock that are outstanding immediately prior to the Effective Time and that are held by stockholders of the Company who shall
have neither voted in favor of the Merger nor consented thereto in writing and who shall have demanded properly in writing appraisal
for such Company Common Stock or Company Preferred Stock in accordance with Section 262 of the DGCL and otherwise complied with
all of the provisions of the DGCL relevant to the exercise and perfection of dissenters’ rights (collectively, the “Dissenting
Shares”) shall not be converted into, and such stockholders shall have no right to receive, the Merger Consideration unless
and until such stockholder fails to perfect or withdraws or otherwise loses his, her or its right to appraisal and payment under the
DGCL. Any stockholder of the Company who fails to perfect or who effectively withdraws or otherwise loses his, her or its rights to appraisal
of such shares of Company Common Stock or Company Preferred Stock under Section 262 of the DGCL shall thereupon be deemed to have
been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without
any interest thereon, upon surrender, in the manner provided in Section 3.01(b), of the Certificate or Certificates that
formerly evidenced such shares of Company Common Stock or Company Preferred Stock (as the case may be).
(b) Prior
to the Closing, the Company shall give SPAC (i) prompt notice of any demands for appraisal received by the Company and any withdrawals
of such demands, and (ii) the opportunity to participate in all negotiations and proceedings with respect to demands for appraisal
under the DGCL. The Company shall not, except with the prior written consent of SPAC (which consent shall not be unreasonably withheld),
make any payment with respect to any demands for appraisal or offer to settle or settle any such demands.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
Except
as set forth in the Company’s disclosure schedule delivered by Company in connection with this Agreement (the “Company
Disclosure Schedule”), the Company hereby represents and warrants to SPAC and Merger Sub as follows:
Section 4.01 Organization
and Qualification; Subsidiaries.
(a) The
Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation
and has the requisite corporate or other organizational power and authority and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as it is now being conducted. The Company is duly qualified or licensed as a foreign
corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated
by it or the nature of its business makes such qualification or licensing necessary, except for such failures to be so qualified or licensed
and in good standing that would not individually or in the aggregate be expected to have a Company Material Adverse Effect.
(b) Except
as set forth in Section 4.01(b) of the Company Disclosure Schedule, the Company does not have any subsidiaries and does
not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for
any equity or similar interest in, any other corporation, partnership, joint venture or business association or other entity.
(c) Section 4.01(c) of
the Company Disclosure Schedule lists all jurisdictions in which the Company conducts its business, or is qualified to conduct business
(including any d/b/a names).
Section 4.02
Certificate of Incorporation and By-laws. The Company has made available a complete and correct copy of the Company
Certificate of Incorporation and Company by-laws, each as amended to date, of the Company. Such Company Certificates of Incorporation
and by-laws are in full force and effect. The Company is not in violation of any of the provisions of the Company Certificates of Incorporation
or its by-laws, except any such violations which would not have or reasonably be expected to have a Company Material Adverse Effect.
Section 4.03 Capitalization.
(a) The
authorized capital stock of the Company consists of 30,000,000 shares of Company Common Stock and 8,950,000 shares of Company Preferred
Stock. As of the date hereof, (i) 4,645,233 shares of Company Common Stock are issued and outstanding, (ii) 8,315,264 shares
of Company Preferred Stock are issued and outstanding, (iii) 13,527,366 shares of Company Common Stock are reserved for issuance
upon the exercise of the outstanding Company Options, in each case, granted under the Company Equity Plan, (vii) 518,784 shares
of Company Common Stock are reserved for future grants under the Company Equity Plan, and (viii) 2,616,048 shares of Company Common
Stock are reserved for issuance upon the exercise of the outstanding Company Options granted outside the Company Equity Plan (the “Stand
Alone Options”).
(b) Except
as set forth in Section 4.03(b) of the Company Disclosure Schedule, (i) other than awards granted under the Company
Equity Plan and the Stand Alone Options, there are no options, warrants, preemptive rights, calls, convertible securities, conversion
rights or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of
the Company or obligating the Company to issue or sell any shares of capital stock of, or other equity interests in, the Company, (ii) other
than awards granted under the Company Equity Plan, the Company is not a party to, or otherwise bound by, and the Company has not granted,
any equity appreciation rights, participations, phantom equity or similar rights and (iii) there are no voting trusts, voting agreements,
proxies, shareholder agreements or other agreements with respect to the voting or transfer of the Company Common Stock, Company Preferred
Stock or any of the equity interests or other securities of the Company. The Company does not own any equity interests in any person.
(c) There
are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of the Company or to
provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any person.
(d) (i) There
are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any
Company Option solely as a result of the Transactions, and (ii) all outstanding shares of the Company, all outstanding Company Options
under the Company Equity Plan and all Stand Alone Options have been issued and granted in compliance with (A) all applicable securities
laws and other applicable laws and (B) all pre-emptive rights and other requirements set forth in applicable contracts to which
the Company is a party.
(e) The
stockholders of the Company collectively own directly and beneficially and of record, all of the equity of the Company (which are represented
by the issued and outstanding shares of the Company). Except for the shares of the Company Common Stock and Company Preferred Stock held
by the stockholders of the Company, the Company Options granted under the Company Equity Plan and the Stand Alone Options, no shares
or other equity or voting interest of the Company, or options, warrants or other rights to acquire any such shares or other equity or
voting interest, of the Company is authorized or issued and outstanding.
(f) All
outstanding shares of Company Common Stock and Company Preferred Stock have been issued and granted in compliance with (i) applicable
securities laws and other applicable laws and (ii) any pre-emptive rights and other similar requirements set forth in applicable
contracts to which the Company is a party.
Section 4.04
Authority Relative to this Agreement. The Company has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and, subject to receiving the Company Stockholder Requisite Approval, to consummate the
Transactions. The execution and delivery of this Agreement by the Company and the consummation by the Company of the Transactions have
been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or to consummate the Transactions (other than, (a) with respect to the Merger, the Company
Stockholder Requisite Approval, which the Written Consent shall satisfy, and (b) the filing and recordation of appropriate merger
documents as required by the DGCL). This Agreement has been duly and validly executed and delivered by the Company and, assuming the
due authorization, execution and delivery by SPAC and Merger Sub, constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, by general equitable principles (the
“Remedies Exceptions”). The Company Board has approved this Agreement and the Transactions, and such approvals are
sufficient so that the restrictions on business combinations set forth in Section 203 of the DGCL shall not apply to the Merger,
this Agreement, the Stockholder Support Agreement, any Ancillary Agreement or any of the other Transactions. To the knowledge of the
Company, no other state takeover statute is applicable to the Merger or the other Transactions.
Section 4.05 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by the Company does not, and subject to receipt of the filing and recordation of appropriate
merger documents as required by the DGCL and of the consents, approvals, authorizations or permits, filings and notifications contemplated
by Section 4.05(b), the performance of this Agreement by the Company will not (i) conflict with or violate the Company
Certificates of Incorporation or the by-laws of the Company, (ii) conflict with or violate any United States or non-United States
statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order (“Law”)
applicable to the Company or by which any property or asset of the Company is bound or affected, or (iii) result in any breach of
or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, result in any material
payment or penalty under, or give to others any right of termination, amendment, acceleration or cancellation of, or result in the creation
of a Lien (other than any Permitted Lien) on any material property or asset of the Company pursuant to, any Material Contract, except,
with respect to clauses (i), (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences which would
not have or reasonably be expected to have a Company Material Adverse Effect.
(b) The
execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, require
any consent, approval, authorization or permit of, or filing with or notification to, any United States federal, state, county or local
or non-United States government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any court,
tribunal, or judicial or arbitral body (a “Governmental Authority”), except (i) for applicable requirements,
if any, of the Exchange Act, state securities or “blue sky” laws (“Blue Sky Laws”) and state takeover
laws, the pre-merger notification requirements of the HSR Act, and filing and recordation of appropriate merger documents as required
by the DGCL, or (ii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not have or would not reasonably be expected to have a Company Material Adverse Effect.
Section 4.06
Permits; Compliance. The Company is in possession of all material franchises,
grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental
Authority necessary for the Company to own, lease and operate its properties or to carry on its business as it is now being conducted
(the “Company Permits”), except where the failure to have such Company Permits would not reasonably be expected to
have a Company Material Adverse Effect. No suspension or cancellation of any of the Company Permits is pending or, to the knowledge of
the Company, threatened in writing. The Company is not in default, breach or violation of, (a) any Law applicable to the Company
or by which any property or asset of the Company is bound or affected, or (b) any Material Contract or Company Permit, except, in
each case, for any such defaults, breaches or violations that would not have or would not reasonably be expected to have a Company Material
Adverse Effect.
Section 4.07 Financial
Statements.
(a) The
Company has made available to SPAC true and complete copies of the unaudited condensed balance sheet of the Company as of December 31,
2021 and December 31, 2022, and the related unaudited condensed statements of operations and cash flows of the Company for each
of the years then ended (collectively, the “Financial Statements”). Each of the Financial Statements fairly presents,
in all material respects, the financial position, results of operations and cash flows of the Company as at the date thereof and for
the period indicated therein, except as otherwise noted therein and the absence of notes.
(b) The
Company has made available to SPAC a true and complete copy of the unaudited condensed balance sheet of the Company as of June 30,
2023 (the “2023 Balance Sheet”), and the related unaudited condensed statements of operations and cash flows of the
Company for the six-month period then ended. Such unaudited financial statements fairly present, in all material respects, the financial
position, results of operations and cash flows of the Company as at the date thereof and for the period indicated therein, except as
otherwise noted therein and subject to normal and recurring year-end adjustments and the absence of notes.
(c) Except
as and to the extent set forth on the Financial Statements or the 2023 Balance Sheet, the Company does not have any liability or obligation
of a nature (whether accrued, absolute, contingent or otherwise) required to be reflected on a balance sheet prepared in accordance with
GAAP, except for: (i) liabilities that were incurred in the ordinary course of business since the date of such 2023 Balance Sheet,
(ii) obligations for future performance under any contract to which the Company is a party or (iii) liabilities and obligations
which are not, individually or in the aggregate, expected to result in a Company Material Adverse Effect.
(d) In
the past three (3) years, (i) neither the Company nor, to the Company’s knowledge, any director, officer, employee, auditor,
accountant or Representative of the Company, has received or otherwise had or obtained knowledge of any complaint, allegation, assertion
or claim, whether written or, to the knowledge of the Company, oral, regarding the accounting or auditing practices, procedures, methodologies
or methods of the Company or its respective internal accounting controls, including any such complaint, allegation, assertion or claim
that the Company has engaged in questionable accounting or auditing practices and (ii) there have been no internal investigations
regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer,
chief financial officer, general counsel, the Company Board or any committee thereof.
(e) To
the knowledge of the Company, no employee of the Company has provided or is providing information to any law enforcement agency regarding
the commission or possible commission of any crime or the violation or possible violation of any applicable Law. Neither the Company
nor, to the knowledge of the Company, any officer, employee, contractor, subcontractor or agent of the Company has discharged, demoted,
suspended, threatened, harassed or in any other manner discriminated against an employee of the Company in the terms and conditions of
employment because of any act of such employee described in 18 U.S.C. sec. 1514A(a).
Section 4.08
Absence of Certain Changes or Events. Since the date of the 2023 Balance
Sheet, except as set forth in Section 4.08 of the Company Disclosure Schedule or as expressly contemplated by this Agreement, (a) the
Company has conducted its businesses in all material respects in the ordinary course and in a manner consistent with past practice, (b) there
has not been any Company Material Adverse Effect, and (c) the Company has not taken any action that, if taken after the date of
this Agreement, would constitute a material breach of any of the covenants set forth in Section 6.01(b).
Section 4.09
Absence of Litigation. Except as would not reasonably be expected to have a Company Material Adverse Effect, there
is no litigation, suit, claim, action, proceeding or investigation by or before any Governmental Authority or person (an “Action”)
pending or, to the knowledge of the Company, threatened against the Company, or any property or asset of the Company, before any Governmental
Authority or person. Except as would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any
property or asset of the Company is subject to any continuing order of, consent decree, settlement agreement or other similar written
agreement with, or, to the knowledge of the Company, continuing investigation by, any Governmental Authority, or any order, writ, judgment,
injunction, decree, determination or award of any Governmental Authority.
Section 4.10 Employee
Benefit Plans.
(a) All
non-standard employment and consulting contracts or agreements to which the Company is a party, with respect to which the Company has
any severance obligation (and, for the avoidance of doubt, excluding standard form agreements for employees outside of the United States
and contracts or agreements that can be terminated at any time without severance or termination pay or upon notice of not more than 60
days), have been made available to SPAC (collectively, the “Service Agreements”). In addition, Section 4.10(a) of
the Company Disclosure Schedule lists, as of the date of this Agreement, all material employee benefit plans (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all bonus, equity compensation, incentive,
deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, fringe benefit, sick
paid and vacation and other material employee benefit plans, programs or arrangements, in each case, which are material and which are
maintained, contributed to or sponsored by the Company for the benefit of any current or former employee, officer, director and/or consultant,
or under which the Company has or could reasonably be expected to incur any material liability (contingent or otherwise) (collectively,
the “Plans”).
(b) With
respect to each Plan, the Company has made available to SPAC, if applicable (i) a true and complete copy of the current plan document
and all material amendments thereto and each trust or other funding arrangement, (ii) copies of the most recent summary plan description
and any summaries of material modifications, (iii) copies of the Internal Revenue Service (“IRS”) Form 5500
annual report and accompanying schedules and nondiscrimination testing results, in each case, for the two (2) most recent plan years,
(iv) copies of the most recently received IRS determination, opinion or advisory letter for each such Plan, and (v) any material
non-routine correspondence from any Governmental Authority with respect to any Plan within the past three (3) years with respect
to which any material liability remains outstanding. The Company does not have any express, legally-binding commitment to modify, change
or terminate any Plan, other than with respect to a modification, change or termination required by ERISA or the Code, or other applicable
Law.
(c) Neither
the Company nor any ERISA Affiliate currently sponsors, maintains or contributes to, nor has, within the past six (6) years, sponsored,
maintained or been required to contribute to, nor has any liability or obligation (contingent or otherwise) under (i) a multiemployer
plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), (ii) a single employer pension plan (within the meaning
of Section 4001(a)(15) of ERISA) subject to Section 412 of the Code and/or Title IV of ERISA, (iii) a multiple employer
plan subject to Section 413(c) of the Code, or (iv) a multiple employer welfare arrangement under ERISA. For purposes
of this Agreement, “ERISA Affiliate” shall mean any entity that together with the Company would be deemed a “single
employer” for purposes of Section 4001(b)(1) of ERISA and/or Sections 414(b), (c) and/or (m) of the Code.
(d) Except
as set forth in Section 4.10(d) of the Company Disclosure Schedule, the Company is not and will not be obligated, whether
under any Plan, Service Agreement or otherwise, to pay separation, severance or termination to any current or former employee, director
and/or independent contractor directly as a result of any Transaction contemplated by this Agreement, nor will any such Transaction accelerate
the time of payment or vesting, or increase the amount, of any material benefit or other compensation due to any individual. The Transactions
shall not be the direct or indirect cause of any amount paid or payable by the Company being classified as an “excess parachute
payment” under Section 280G of the Code.
(e) Except
as set forth in Section 4.10(d) of the Company Disclosure Schedule, none of the Plans nor Service Agreements provides,
nor does the Company have or reasonably expect to have any obligation to provide retiree medical benefits to any current or former employee,
officer, director or consultant of the Company after termination of employment or service except as may be required under Section 4980B
of the Code and Parts 6 and 7 of Title I of ERISA and the regulations thereunder.
(f) Except
as would not reasonably be expected to have a Company Material Adverse Effect, each Plan and each Service Agreement is in compliance
in accordance with its terms and the requirements of all applicable Laws including, without ERISA and the Code. Except as would not reasonably
be expected to have a Company Material Adverse Effect, no Action is pending or, to the knowledge of the Company, threatened with respect
to any Plan (other than claims for benefits in the ordinary course) or Service Agreement and, to the knowledge of the Company, no fact
or event exists that could reasonably be expected to give rise to any such Action.
(g) Each
Plan that is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has (i) received
a favorable determination letter from the IRS covering all of the provisions applicable to the Plan for which determination letters are
currently available that the Plan is so qualified and each trust established in connection with such Plan is exempt from federal income
taxation under Section 501(a) of the Code or (ii) is entitled to rely on a favorable opinion letter from the IRS, and
to the knowledge of Company, no fact or event has occurred since the date of such determination or opinion letter or letters from the
IRS that could reasonably be expected to result in the loss of the qualified status of any such Plan or the exempt status of any such
trust.
(h) All
contributions, premiums or payments required to be made with respect to any Plan have been timely made to the extent due or properly
accrued on the consolidated financial statements of the Company, except as would not result in material liability to the Company.
(i) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company and each ERISA Affiliate have each complied
with the notice and continuation coverage requirements, and all other requirements, of Section 4980B of the Code and Parts 6 and
7 of Title I of ERISA, and the regulations thereunder, with respect to each Plan that is, or was during any taxable year for which the
statute of limitations on the assessment of federal income Taxes remains open, by consent or otherwise, a group health plan within the
meaning of Section 5000(b)(1) of the Code.
(j) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company and each Plan that is a “group health
plan” as defined in Section 733(a)(1) of ERISA (each, a “Health Plan”) is and has been in compliance
with the Patient Protection and Affordable Care Act of 2010 (“PPACA”), to the knowledge of the Company, and no event
has occurred, and no condition or circumstance exists, that could reasonably be expected to subject the Company, any ERISA Affiliate
or any Health Plan to any material liability for penalties or excise taxes under Code Section 4980D or 4980H or any other provision
of the PPACA.
(k) Except
as would not reasonably be expected to have a Company Material Adverse Effect, each Plan and each Service Agreement that constitutes
a nonqualified deferred compensation plan subject to Section 409A of the Code has been administered and operated in compliance with
the provisions of Section 409A of the Code and the Treasury Regulations thereunder.
Section 4.11 Labor
and Employment Matters.
(a)
Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) there are no Actions pending or, to the
knowledge of the Company, threatened against the Company by any of its current or former employees; (ii) the Company is not, and
has not been for the past three (3) years, a party to, bound by, or negotiating any collective bargaining agreement or other contract
with a union, works council or labor organization applicable to persons employed by the Company, nor, to the knowledge of the Company,
are there any activities or proceedings of any labor union to organize any such employees; (iii) there are no unfair labor practice
complaints pending against the Company before the National Labor Relations Board; and (iv) in the past three (3) years, there
has not been, nor, to the knowledge of the Company, has there been any threat of any strike, slowdown, work stoppage, lockout, concerted
refusal to work overtime or other similar labor disruption or dispute against the Company.
(b) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company is and, in the past three (3) years,
has been in compliance with all applicable Laws relating to the employment, employment practices, employment discrimination, terms and
conditions of employment, mass layoffs and plant closings (including the Worker Adjustment and Retraining Notification Act of 1988, as
amended, or any similar state or local Laws), immigration, meal and rest breaks, pay equity, workers’ compensation, family and
medical leave, and occupational safety and health requirements, including those related to wages, hours, collective bargaining and the
payment and withholding of Taxes.
Section 4.12 Real
Property; Title to Assets.
(a) Section 4.12(a) of
the Company Disclosure Schedule lists the street address of each parcel of Leased Real Property, and sets forth a list of each lease,
sublease, and license pursuant to which the Company leases, subleases or licenses and real property (each, a “Lease”),
with the name of the lessor and the date of the Lease in connection therewith and each material amendment to any of the foregoing (collectively,
the “Lease Documents”). True, correct and complete copies of all Lease Documents have been made available to SPAC.
There are no leases, subleases, concessions or other contracts granting to any person other than the Company the right to use or occupy
any real property, and all such Leases are in full force and effect, are valid and enforceable in accordance with their respective terms,
subject to the Remedies Exceptions, and there is not, under any of such Leases, any existing material default or event of default (or
event which, with notice or lapse of time, or both, would constitute a default) by the Company or, to the Company’s knowledge,
by the other party to such Leases, except as would not, individually or in the aggregate, reasonably be expected to result in a Company
Material Adverse Effect. The Company has not subleased, sublicensed or otherwise granted to any person any right to use, occupy or possess
any portion of the Leased Real Property.
(b) There
are no contractual or legal restrictions that preclude or restrict the ability of the Company to use any Leased Real Property by such
party for the purposes for which it is currently being used, except as would not, individually or in the aggregate, reasonably be expected
to result in a Company Material Adverse Effect. There are no latent defects or adverse physical conditions affecting the Leased Real
Property, and improvements thereon, other than those that would not have a Company Material Adverse Effect.
(c) The
Company has legal and valid title to, or, in the case of Leased Real Property and assets, valid leasehold or subleasehold interests in,
all of its properties and assets, tangible and intangible, real, personal and mixed, used or held for use in its business, free and clear
of all Liens other than Permitted Liens, except as would not, individually or in the aggregate, reasonably be expected to result in a
Company Material Adverse Effect.
Section 4.13 Intellectual
Property.
(a) Section 4.13(a) of
the Company Disclosure Schedule contains a true, correct and complete list of all of the following: registered Patents, Trademarks, domain
names and other agreements or permissions under which the Company is the licensor or licensee and Copyrights and applications for any
of the foregoing that have been filed with the applicable Governmental Authority that are owned or purported to be owned, used or held
for use by the Company (“Registered IP”) (showing in each, as applicable, the filing date, date of issuance, expiration
date and registration or application number, and registrar).
(b) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company solely and exclusively owns and possesses,
free and clear of all Liens (other than Permitted Liens), all right, title and interest in and to the Company-Owned IP and has the right
to use pursuant to a valid and enforceable written license, all Company-Licensed IP. Except as would not reasonably be expected to have
a Company Material Adverse Effect, all Company-Owned IP that is material to the business of, the Company as currently conducted is subsisting
and, to the knowledge of the Company, valid and enforceable. Except as (i) is specified on Section 4.13(b) of the
Company Disclosure Schedule or (ii) would not reasonably be expected to have a Company Material Adverse Effect, no loss or expiration
of any material Company-Owned IP is threatened or pending.
(c) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company has taken and takes commercially reasonable
actions to maintain, protect and enforce Intellectual Property rights in the trade secrets and other Confidential Information in its
possession or control, including the secrecy, confidentiality and value of its trade secrets and other Confidential Information. Company
has not disclosed any such trade secrets or Confidential Information that is material to the business of the Company to any other person
other than pursuant to a written confidentiality agreement under which such other person agrees to maintain the confidentiality and protect
such Confidential Information.
(d)
Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) there have been no claims properly filed
with a Governmental Authority and served on the Company, or threatened in writing (including email) to be filed, against the Company
with any Governmental Authority, by any person (A) contesting the validity, use, ownership, enforceability, patentability or registrability
of any of the Registered IP, or (B) alleging any infringement or misappropriation of, or other conflict with, any Intellectual Property
rights of other persons (including any material demands or offers to license any Intellectual Property rights from any other person);
(ii) to the Company’s knowledge, the operation of the business of the Company as currently conducted or contemplated to be
conducted (including the Products) has not and does not infringe, misappropriate or violate, any Intellectual Property rights of other
persons; (iii) to the Company’s knowledge, no other person has infringed, misappropriated or violated any of the Company-Owned
IP; and (iv) the Company has not received any formal written opinions of counsel regarding any of the foregoing.
(e) Except
as (i) specified on Section 4.13(e) of the Company Disclosure Schedule or (ii) would not reasonably be expected
to have a Company Material Adverse Effect, all current and past founders, officers, management employees, and contractors who have contributed,
developed or conceived any Company-Owned IP have executed valid, written agreements with the Company, substantially in the form made
available to Merger Sub or SPAC, and pursuant to which such persons agreed to maintain in confidence all confidential or proprietary
information acquired by them in the course of their relationship with the Company and to assign to the Company all of their entire right,
title, and interest in and to any Intellectual Property created, conceived or otherwise developed by such person in the course of and
related to his, her or its relationship with the Company, without further consideration or any restrictions or obligations whatsoever,
including on the use or other disposition or ownership of such Intellectual Property, except as otherwise required or prohibited by applicable
Law.
(f) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company does not use and has not used any Open Source
Software or any modification or derivative thereof (i) in a manner that would grant or purport to grant to any other person any
rights to or immunities under any of the Company-Owned IP, or (ii) under any license requiring the Company to disclose or distribute
the source code to any Product components or Business Systems owned or purported to be owned by the Company which are incorporated in
or necessary for the use of the Products, to license or provide the source code to any such Business Systems or Product components for
the purpose of making derivative works, or to make available for redistribution to any person the source code to any of the Product components
at no or minimal charge.
(g) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company owns, leases, licenses, or otherwise has the
legal right to use all Business Systems, and such Business Systems are sufficient for the immediate and anticipated future needs of the
business of the Company as currently conducted. Except as would not reasonably be expected to have a Company Material Adverse Effect,
the Company maintains commercially reasonable disaster recovery and business continuity plans, procedures and facilities, and since January 1,
2021, there has not been any material failure with respect to any of the Products or other Business Systems that has not been remedied
or replaced. The Company has purchased a sufficient number of seat licenses for its Business Systems.
(h) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company currently and previously since January 1,
2021 has complied with (i) all applicable Privacy/Data Security Laws, (ii) industry standards to which the Company is legally
bound, and (iii) all contractual commitments that the Company has entered into or is otherwise bound with respect to privacy and/or
data security of Personal Information and/or Business Data held or processed by or on behalf of the Company (collectively, the “Data
Security Requirements”). Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company
has implemented reasonable data security safeguards designed to protect the security and integrity of its Business Systems and any Personal
Information or Business Data held or processed by, via contractual commitments, or on behalf of the Company, including implementing commercially
reasonable procedures designed to prevent unauthorized access and the introduction of Disabling Devices. Except as would not reasonably
be expected to have a Company Material Adverse Effect, the Company has not inserted and, to the knowledge of the Company, no other person
has inserted or alleged to have inserted any Disabling Device in any of the Business Systems or Product components. Except as would not
reasonably be expected to have a Company Material Adverse Effect, since January 1, 2021, to the Company’s knowledge, the Company
has not (x) experienced any data security breaches that were required to be reported under applicable Privacy/Data Security Laws;
or (y) been subject to or received written notice of any audits, proceedings or investigations by any Governmental Authority or
any customer, or received any claims or complaints regarding the collection, dissemination, storage or use of Personal Information, or
the violation of any applicable Data Security Requirements.
(i) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the Company has all rights to use the Business Data, in
whole or in part, in the manner in which the Company receives and uses such Business Data prior to the Closing Date. Except as would
not reasonably be expected to have a Company Material Adverse Effect, the Company is not subject to any contractual requirements, privacy
policies, or other legal obligations, including based on the Transactions, that would prohibit Merger Sub or SPAC from receiving or using
Personal Information held or processed by or on behalf of the Company, in a materially similar manner to which the Company receives and
uses such Personal Information and Business Data prior to the Closing Date or result in material liabilities in connection with Data
Security Requirements.
Section 4.14 Taxes.
(a) The
Company: (i) has filed (taking into account any extension of time within which to file) all material Tax Returns required to be
filed by it as of the date hereof and all such filed Tax Returns are complete and accurate in all material respects; (ii) has paid
all material Taxes that are shown as due on such filed Tax Returns and any other material Taxes that the Company is otherwise obligated
to pay, except with respect to Taxes that are being contested in good faith and are disclosed in Section 4.14(a) of
the Company Disclosure Schedule, and no material penalties or charges are due with respect to the late filing of any Tax Return required
to be filed by or with respect to it on or before the Effective Time; (iii) with respect to all material Tax Returns filed by it,
has not waived any statute of limitations with respect to material Taxes or agreed to any extension of time with respect to a material
Tax assessment or deficiency; and (iv) does not have any deficiency, audit, examination, investigation or other proceeding in respect
of material Taxes or Tax matters pending or proposed or threatened in writing, for a Tax period which the statute of limitations for
assessments remains open.
(b) The
Company is not a party to, is not bound by, and has no obligation under any Tax sharing agreement, Tax indemnification agreement, Tax
allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the sharing or
ceding of credits or losses) and has no a potential liability or obligation to any person as a result of or pursuant to any such agreement,
contract, arrangement or commitment other than an agreement, contract, arrangement or commitment the primary purpose of which does not
relate to Taxes.
(c) The
Company will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income
for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting
for a taxable period ending on or prior to the Closing Date under Code Section 481(c) (or any corresponding or similar provision
of state, local or foreign income Tax Law); (ii) “closing agreement” as described in Code Section 7121 (or any
corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; or (iii) installment
sale made on or prior to the Closing Date.
(d) The
Company has withheld and paid to the appropriate Tax authority all material Taxes required to have been withheld and paid in connection
with amounts paid or owing to any current or former employee, independent contractor, creditor, shareholder or other third party and
has complied in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of
Taxes.
(e) The
Company has not been a member of an affiliated group filing a consolidated, combined or unitary U.S. federal, state, local or foreign
income Tax Return (other than a group of which the Company was the common parent).
(f) The
Company has no material liability for the Taxes of any person (other than the Company) under Treasury Regulation Section 1.1502-6
(or any similar provision of state, local or foreign law), or as a transferee or successor.
(g) The
Company has no request for a material ruling in respect of Taxes pending between the Company and any Tax authority.
(h) The
Company has made available to SPAC true, correct and complete copies of the final filed U.S. federal income Tax Returns filed by the
Company for tax years 2019 through 2022.
(i) The
Company has not within the last two years distributed stock of another person, or has had its stock distributed by another person, in
a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(j) The
Company has not engaged in or entered into a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(k) Neither
the IRS nor any other United States or non-United States taxing authority or agency has asserted in writing any deficiency or claim for
any material Taxes against the Company that has not been resolved.
(l)
There are no material Tax Liens upon any assets of the Company
except for Permitted Liens.
(m) As
used in this Agreement, (i) the term “Tax” (including, with correlative meaning, the term “Taxes,”)
includes all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, capital stock, severances,
stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and
other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect
to such amounts and any interest in respect of such penalties and additions, and (ii) the term “Tax Return” includes
all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns, as well as attachments
thereto and amendments thereof) required to be supplied to a Tax authority relating to Taxes.
Section 4.15
Environmental Matters. Except as (i) set forth in Section 4.15 of the Company Disclosure Schedule Except
or (ii) would not reasonably be expected to have a Company Material Adverse Effect, (a) the Company is not, or has not been
in the past three (3) years, in violation of any applicable Environmental Law; (b) to the knowledge of the Company, the Company
has not released or caused any release of Hazardous Substances on or from any property currently or formerly owned, leased or operated
by the Company (including, without limitation, soils and surface and ground waters) in violation of any Environmental Law or in a manner
or quantity which requires reporting, investigation, remediation, monitoring or other response action by the Company pursuant to applicable
Environmental Laws; (c) to the Company’s knowledge, the Company has not transported or disposed of, or arranged for the transportation
or disposal of, Hazardous Substances at any real property not owned, operated or leased by the Company, in violation of any Environmental
Law or otherwise in a manner or quantity that has resulted or would reasonably be expected to result in a material liability to the Company
under any Environmental Law; (d) the Company has all material permits, licenses and other authorizations required of the Company
under applicable Environmental Law (“Environmental Permits”); (e) the Company is in compliance with the terms
and conditions of its Environmental Permits; and (f) the Company has delivered to SPAC true and complete copies of all environmental
Phase I reports and other material investigations, studies, audits, tests, reviews or other analyses commenced or conducted by or on
behalf of the Company (or by a third-party of which the Company has knowledge) in relation to the current or prior business of the Company
or any real property presently or formerly owned, leased, or operated by the Company (or its or their predecessors) that are in possession,
custody or control of the Company.
Section 4.16 Material
Contracts.
(a) Section 4.16(a) of
the Company Disclosure Schedule lists, as of the date of this Agreement, the following types of contracts and agreements to which the
Company is a party, excluding for this purpose, any purchase orders submitted by customers (such contracts and agreements as are set
forth on Section 4.16(a) of the Company Disclosure Schedule being the “Material Contracts”):
(i) each
contract and agreement with consideration paid or payable to or by the Company of more than $250,000, in the aggregate, over the 12-month
period ending December 31, 2022;
(ii) each
contract and agreement with Suppliers to the Company for expenditures paid or payable by the Company of more than $250,000, in the aggregate,
over the 12-month period ending December 31, 2022;
(iii) each
contract and agreement with customers of the Company that involves consideration payable to the Company of more than $250,000, in the
aggregate, over the 12-month period ending December 31, 2022;
(iv) all
broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting
and advertising contracts and agreements to which the Company is a party that are material to the business of the Company;
(v) all
Service Agreements and management contracts, including any contracts involving the payment of royalties or other amounts calculated based
upon the revenues or income of the Company or income or revenues related to any Product of the Company to which the Company is a party;
(vi) all
contracts and agreements evidencing Indebtedness (or any guaranty therefor) for borrowed money in an amount greater than $250,000;
(vii) all
partnership, joint venture or similar agreements that are material to the business of the Company;
(viii) all
contracts and agreements with any Governmental Authority to which the Company is a party, other than any Company Permits;
(ix) all
contracts and agreements that limit, or purport to limit, the ability of the Company to compete in any line of business or with any person
or entity or in any geographic area or during any period of time or to hire or retain any person,
(x) all
leases or master leases of personal property reasonably likely to result in annual payments of $250,000 or more in a 12-month period;
(xi) all
contracts involving use of any Company-Licensed IP required to be listed in Section 4.13(b) of the Company Disclosure
Schedule; and
(xii) contracts
which involve the license or grant of rights to Company-Owned IP by the Company, but excluding any nonexclusive licenses (or sublicenses)
of Company-Owned IP granted: (A) to customers or distributors in the ordinary course of business consistent with past practice;
(B) to vendors and service providers for the purpose of providing the applicable services to the Company; or (C) in the ordinary
course of business for the use of a Trademark of the Company for marketing or similar purposes.
(b)
Except as would not reasonably be expected to have a Company Material Adverse
Effect, (i) each Material Contract is a legal, valid and binding obligation of the Company and, to the knowledge of the Company,
the other parties thereto, and is enforceable in accordance with its terms and the Company is not in breach or violation of, or default
under, any Material Contract nor has any Material Contract been canceled by the other party; (ii) to the Company’s knowledge,
no other party is in breach or violation of, or default under, any Material Contract; and (iii) the Company has not received any
written, or to the knowledge of the Company, oral claim of default under any such Material Contract.
Section 4.17
Board Approval; Vote Required. The Company Board, by resolutions duly
adopted by unanimous vote of those voting at a meeting duly called and held and not subsequently rescinded or modified in any way, or
by unanimous written consent, has duly (a) determined that this Agreement and the Merger are fair to and in the best interests of
the Company and its stockholders, (b) approved this Agreement and the Merger and declared their advisability, and (c) recommended
that the stockholders of the Company approve and adopt this Agreement and approve the Merger and directed that this Agreement and the
Transactions (including the Merger) be submitted for consideration by the Company’s stockholders. The Company Stockholder Requisite
Approval is the only vote of the holders of any class or series of capital stock of the Company necessary to adopt this Agreement and
approve the Transactions. The Written Consent, if executed and delivered, would qualify as the Company Stockholder Requisite Approval
and no additional approval or vote from any holders of any class or series of capital stock of the Company would then be necessary to
adopt this Agreement and approve the Transactions.
Section 4.18
Interested Party Transactions. Except for employment relationships and the payment of compensation, benefits and expense
reimbursements and advances in the ordinary course of business, no director, officer, employee, trustee, beneficiary or any other affiliate
of the Company, to the Company’s knowledge, has or has had, directly or indirectly: (a) an economic interest in any person
that has furnished or sold, or furnishes or sells, services or Products that the Company furnishes or sells, or proposes to furnish or
sell; (b) an economic interest in any person that purchases from or sells or furnishes to, the Company, any goods or services; (c) a
beneficial interest in any contract or agreement disclosed in Section 4.16(a) of the Company Disclosure Schedule; or (d) any
contractual or other arrangement with the Company, other than customary indemnity arrangements and customary employment-related agreements
and arrangements; provided, however, that ownership of no more than five percent (5%) of the outstanding voting stock of
a publicly traded corporation shall not be deemed an “economic interest in any person” for purposes of this Section 4.18.
Section 4.19
Brokers. Except as set forth on Section 4.19 of the Company Disclosure Schedule, no broker, finder or investment
banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions based upon arrangements
made by or on behalf of the Company.
Section 4.20 Anti-Corruption;
Money Laundering.
(a) Except
as would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its Representatives acting
on its behalf has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political
activity, (ii) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political
parties or campaigns or (iii) violated any provision of the U.S. Foreign Corrupt Practices Act of 1977 or any other local or foreign
anti-corruption or bribery Law. Except as would not reasonably be expected to have a Company Material Adverse Effect, neither the Company,
nor any of its Representatives acting on its behalf has directly or indirectly, given or agreed to give any unlawful gift or similar
benefit in any material amount to any customer, supplier, governmental employee, or other Person who is or may be in a position to help
or hinder the Company or assist the Company in connection with any actual or proposed transaction.
(b) Except
as would not reasonably be expected to have a Company Material Adverse Effect, the operations of the Company are and have been conducted
at all times in compliance with money laundering statutes in all applicable jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority, and no Action
involving the Company with respect to any of the foregoing is pending or, to the knowledge of the Company, threatened.
(c) Except
as would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its directors or officers,
or, to the knowledge of the Company, any other Representative acting on behalf of the Company is currently identified on the specially
designated nationals or other blocked person list or otherwise currently subject to any U.S. sanctions administered by OFAC, and the
Company has not, in the last five (5) fiscal years, directly or indirectly, used any funds, or loaned, contributed or otherwise
made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in Cuba, Iran,
North Korea, Syria, Sudan, Russia, the Crimean region of Ukraine, or any other country sanctioned by OFAC or for the purpose of financing
the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC.
Section 4.21
Title to and Sufficiency of Assets. Except as would not reasonably
be expected to have a Company Material Adverse Effect, the Company has good and marketable title to, or a valid leasehold interest in
or right to use, all of its assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under
leasehold interests, (c) Liens specifically identified on the 2023 Balance Sheet and (d) Liens set forth on the Company Disclosure
Schedule. Except as would not reasonably be expected to have a Company Material Adverse Effect, the assets (including intellectual property
rights and contractual rights) of the Company constitute all of the assets, rights and properties that are used in the operation of the
businesses of the Company as it is now conducted or that are used or held by the Company for use in the operation of the businesses of
the Company, and taken together, are adequate and sufficient for the operation of the businesses of the Company as currently conducted.
Section 4.22
Insurance. Except as would not reasonably be expected to have a Company
Material Adverse Effect, the Company has insurance policies covering such risks as are customarily carried by Persons conducting business
in the industries and geographies in which the Company conducts its business. All such policies are in full force and effect, all premiums
due and payable thereon as of the date of this Agreement have been paid in full as of the date of this Agreement.
Section 4.23
Books and Records. Except as would not reasonably be expected to have a Company Material Adverse Effect, the of the
financial books and records of the Company are complete and accurate in all material respects and have been maintained in the ordinary
course of business consistent with past practice and in accordance with applicable Laws.
Section 4.24
Exclusivity of Representations and Warranties. Except as otherwise expressly
provided in this Article IV (as modified by the Company Disclosure Schedule), the Company hereby expressly disclaims and negates,
any other express or implied representation or warranty whatsoever (whether at Law or in equity) with respect to the Company, its affiliates,
and any matter relating to any of them, including their affairs, the condition, value or quality of the assets, liabilities, financial
condition or results of operations, or with respect to the accuracy or completeness of any other information made available to SPAC,
its affiliates or any of their respective Representatives by, or on behalf of, Company, and any such representations or warranties are
expressly disclaimed. Without limiting the generality of the foregoing, except as expressly set forth in this Agreement, neither Company
nor any other person on behalf of Company has made or makes, any representation or warranty, whether express or implied, with respect
to any projections, forecasts, estimates or budgets made available to SPAC, its affiliates or any of their respective Representatives
of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any
component thereof) of the Company (including the reasonableness of the assumptions underlying any of the foregoing), whether or not included
in any management presentation or in any other information made available to SPAC, its affiliates or any of their respective Representatives
or any other person, and that any such representations or warranties are expressly disclaimed.
Section 4.25
Investigation and Reliance. The Company is a sophisticated party and
has made its own independent investigation, review and analysis regarding SPAC, Merger Sub and the Transactions, which investigation,
review and analysis were conducted by the Company together with expert advisors, including legal counsel, that they have engaged for
such purpose. The Company and its Representatives have been provided with full and complete access to the Representatives, properties,
offices, plants and other facilities, books and records of SPAC and Merger Sub and other information that they have requested in connection
with their investigation of SPAC, Merger Sub and the Transactions. The Company is not relying on any statement, representation or warranty,
oral or written, express or implied, made by SPAC, Merger Sub or any of their Representatives, except as expressly set forth in Article V
(as modified by the SPAC Disclosure Schedule). None of SPAC, Merger Sub or any of their respective stockholders, affiliates or Representatives
shall have any liability to the Company or its stockholders, affiliates or Representatives resulting from the use of any information,
documents or materials made available to SPAC or Merger Sub or any of their Representatives, whether orally or in writing, in any confidential
information memoranda, “data rooms,” management presentations, due diligence discussions or in any other form in expectation
of the Transactions.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
OF SPAC AND MERGER SUB
Except
as set forth in (i) the disclosure schedules delivered by SPAC to the Company on the date hereof (the “SPAC Disclosure
Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to
which they refer (which disclosure in the SPAC Disclosure Schedules shall be deemed to qualify or provide disclosure in response to (a) the
section or subsection of this Article V that corresponds to the section or subsection of the SPAC Disclosure Schedules in
which any such disclosure is set forth, and (ii) any other section or subsection of this Article V to the extent that
its relevance to such section or subsection is reasonably apparent on the face of such disclosure) and (iii) the SPAC SEC Reports
(to the extent the qualifying nature of such disclosure is readily apparent from the content of such SPAC SEC Reports, but excluding
disclosures referred to in “Forward-Looking Statements”, “Risk Factors” and any other disclosures therein to
the extent they are of a predictive or cautionary nature or related to forward-looking statements) (it being acknowledged that nothing
in disclosed in such a SEC Report will be deemed to modify or qualify the representations and warranties set forth in Section 5.01
(Corporate Organization), Section 5.03 (Capitalization) and Section 5.04 (Authority Relative to This
Agreement)), SPAC hereby represents and warrants to the Company as follows:
Section 5.01 Corporate
Organization.
(a) Each
of SPAC and Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power and authority and all necessary governmental approvals to own, lease and operate
its properties and to carry on its business as it is now being conducted.
(b) Merger
Sub is the only subsidiary of SPAC. Except for Merger Sub, SPAC does not directly or indirectly own any equity or similar interest in,
or any interest convertible into or exchangeable or exercisable for any equity or similar interest in, any corporation, partnership,
joint venture or business association or other person.
Section 5.02
Certificate of Incorporation and By-laws. Each of SPAC and Merger Sub
has heretofore furnished to the Company complete and correct copies of the SPAC Organizational Documents and the Merger Sub Organizational
Documents. The SPAC Organizational Documents and the Merger Sub Organizational Documents are in full force and effect. Neither SPAC nor
Merger Sub is in violation of any of the provisions of the SPAC Organizational Documents and the Merger Sub Organizational Documents
except as would not reasonably be expected to have a SPAC Material Adverse Effect.
Section 5.03 Capitalization.
(a) The
authorized capital stock of SPAC consists of (i) 100,000,000 shares of SPAC Class A Common Stock, (ii) 10,000,000 shares
of Class B Common Stock, and (iii) 1,000,000 shares of preferred stock, par value $0.0001 per share (the “SPAC Preferred
Stock”). As of the date of this Agreement
(i) 3,963,176 shares
of SPAC Class A Common Stock are issued and outstanding and (ii) 2,198,715 shares of SPAC Class B are issued and outstanding,
all of which are validly issued, fully paid and non-assessable and not subject to any preemptive rights, (ii) no shares of SPAC
Common Stock are held in the treasury of SPAC, (iii) 8,654,860 SPAC Warrants are issued and outstanding, and (iv) 8,654,860
shares of SPAC Class A Common Stock are reserved for future issuance pursuant to the SPAC Warrants. As of the date of this Agreement,
there are no shares of SPAC Preferred Stock issued and outstanding. Each SPAC Warrant is exercisable for one share of SPAC Class A
Common Stock at an exercise price of $11.50.
(b) As
of the date of this Agreement, the authorized capital stock of Merger Sub consists of 1,000 shares of common stock, par value $0.0001
per share (the “Merger Sub Common Stock”). As of the date hereof, 100 shares of Merger Sub Common Stock are issued
and outstanding. All outstanding shares of Merger Sub Common Stock have been duly authorized, validly issued, fully paid and are non-assessable
and are not subject to preemptive rights, and are held by SPAC free and clear of all Liens, other than transfer restrictions under applicable
securities laws and the Merger Sub Organizational Documents.
(c) All
outstanding SPAC Units, shares of SPAC Common Stock and SPAC Warrants have been issued and granted in compliance with all applicable
securities laws and other applicable Laws and were issued free and clear of all Liens other than transfer restrictions under applicable
securities laws and the SPAC Organizational Documents.
(d) The
Merger Consideration being delivered by SPAC hereunder shall be duly and validly issued, fully paid and nonassessable, and each such
share or other security shall be issued free and clear of preemptive rights and all Liens, other than transfer restrictions under applicable
securities laws and the SPAC Organizational Documents. The Merger Consideration will be issued in compliance with all applicable securities
Laws and other applicable Laws and without contravention of any other person’s rights therein or with respect thereto.
(e) Except
for securities issued by SPAC as permitted by this Agreement and the SPAC Warrants, SPAC has not issued any options, warrants, preemptive
rights, calls, convertible securities or other rights, agreements, arrangements or commitments of any character relating to the issued
or unissued capital stock of SPAC or obligating SPAC to issue or sell any shares of capital stock of, or other equity interests in, SPAC.
All shares of SPAC Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments
pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and non-assessable. Neither SPAC nor any subsidiary
of SPAC is a party to, or otherwise bound by, and neither SPAC nor any subsidiary of SPAC has granted, any equity appreciation rights,
participations, phantom equity or similar rights. SPAC is not a party to any voting trusts, voting agreements, proxies, shareholder agreements
or other agreements with respect to the voting or transfer of SPAC Common Stock or any of the equity interests or other securities of
SPAC or any of its subsidiaries. Other than (i) the SPAC Redemption Rights and (ii) the Sponsor’s rights to convert Sponsor
Debt into New SPAC Common Stock under the Sponsor Promissory Notes, there are no outstanding contractual obligations of SPAC to repurchase,
redeem or otherwise acquire any shares of SPAC Common Stock. There are no outstanding contractual obligations of SPAC to make any investment
(in the form of a loan, capital contribution or otherwise) in, any person.
Section 5.04
Authority Relative to This Agreement. Each of SPAC, and Merger Sub
have all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate
the Transactions. The execution and delivery of this Agreement by each of SPAC and Merger Sub and the consummation by each of SPAC and
Merger Sub of the Transactions, have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings
on the part of SPAC or Merger Sub are necessary to authorize this Agreement or to consummate the Transactions (other than (a) with
respect to the Merger, the approval and adoption of this Agreement by the holders of a majority of the then-outstanding shares of SPAC
Common Stock and by the holders of a majority of the then- outstanding shares of Merger Sub Common Stock, and the filing and recordation
of appropriate merger documents as required by the DGCL, and (b) with respect to the issuance of SPAC Common Stock and the amendment
and restatement of the SPAC Certificate of Incorporation pursuant to this Agreement, the approval of majority of the then-outstanding
shares of SPAC Common Stock). This Agreement has been duly and validly executed and delivered by SPAC and Merger Sub and, assuming due
authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of SPAC or Merger Sub, enforceable
against SPAC or Merger Sub in accordance with its terms subject to the Remedies Exceptions.
Section 5.05 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by each of SPAC and Merger Sub do not, and the performance of this Agreement by each of SPAC
and Merger Sub, subject to approval by the majority of the outstanding shares of SPAC Common Stock, will not (i) conflict with or
violate the SPAC Organizational Documents or the Merger Sub Organizational Documents, (ii) assuming that all consents, approvals,
authorizations and other actions described in Section 5.05(b) have been obtained and all filings and obligations described
in Section 5.05(b) have been made, conflict with or violate any Law, rule, regulation, order, judgment or decree applicable
to each of SPAC or Merger Sub or by which any of their property or assets is bound or affected, or (iii) result in any breach of,
or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of each
of SPAC or Merger Sub pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which each of SPAC or Merger Sub is a party or by which each of SPAC or Merger Sub or any of their properties
or assets is bound or affected, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults
or other occurrences which would not have or reasonably be expected to have an SPAC Material Adverse Effect.
(b) The
execution and delivery of this Agreement by each of SPAC and Merger Sub do not, and the performance of this Agreement by each of SPAC
and Merger Sub will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental
Authority, except
(i) for applicable
requirements, if any, of the Exchange Act, Blue Sky Laws and state takeover laws, the pre-merger notification requirements of the HSR
Act, and filing and recordation of appropriate merger documents as required by the DGCL and (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate,
prevent or materially delay consummation of any of the Transactions or otherwise prevent SPAC or Merger Sub from performing its material
obligations under this Agreement.
Section 5.06
Compliance. Neither SPAC nor Merger Sub is or has been in conflict
with, or in default, breach or violation of, (a) any Law applicable to SPAC or Merger Sub or by which any property or asset of SPAC
or Merger Sub is bound or affected, or (b) any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation to which SPAC or Merger Sub is a party or by which SPAC or Merger Sub or any property or asset of SPAC
or Merger Sub is bound, except, in each case, for any such conflicts, defaults, breaches or violations that would not have or reasonably
be expected to have an SPAC Material Adverse Effect. Each of SPAC and Merger Sub is in possession of all material franchises, grants,
authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental
Authority necessary for SPAC or Merger Sub to own, lease and operate its properties or to carry on its business as it is now being conducted.
Section 5.07 SEC
Filings; Financial Statements; Sarbanes-Oxley.
(a) SPAC
has filed all forms, reports, schedules, statements and other documents, including any exhibits thereto, required to be filed by it with
the Securities and Exchange Commission (the “SEC”) since May 4, 2021, together with any amendments, restatements
or supplements thereto (collectively, the “SPAC SEC Reports”). SPAC has heretofore furnished to the Company true and
correct copies of all amendments and modifications that have not been filed by SPAC with the SEC to all agreements, documents and other
instruments that previously had been filed by SPAC with the SEC and are currently in effect. As of their respective dates, the SPAC SEC
Reports (i) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities
Act” ), the Exchange Act and the Sarbanes-Oxley Act, and the rules and regulations promulgated thereunder, and (ii) did
not, at the time they were filed, or, if amended, as of the date of such amendment, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading. Each director and executive officer of SPAC has filed with the SEC on a
timely basis all documents required with respect to SPAC by Section 16(a) of the Exchange Act and the rules and regulations
thereunder.
(b) Each
of the financial statements (including, in each case, any notes thereto) contained in the SPAC SEC Reports was prepared in accordance
with GAAP (applied on a consistent basis) and Regulation S-X and Regulation S-K, as applicable, throughout the periods indicated (except
as may be indicated in the notes thereto or, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC)
and each fairly presents, in all material respects, the financial position, results of operations, changes in stockholders equity and
cash flows of SPAC as at the respective dates thereof and for the respective periods indicated therein, (subject, in the case of unaudited
statements, to normal and recurring year-end adjustments which have not had, and would not reasonably be expected to individually or
in the aggregate be material). SPAC has no off-balance sheet arrangements that are not disclosed in the SPAC SEC Reports. No financial
statements other than those of SPAC are required by GAAP to be included in the consolidated financial statements of SPAC.
(c) Except
as and to the extent set forth in the SPAC SEC Reports, neither SPAC nor Merger Sub has any liability or obligation of a nature (whether
accrued, absolute, contingent or otherwise) required to be reflected on a balance sheet prepared in accordance with GAAP, except for
liabilities and obligations arising in the ordinary course of SPAC’s and Merger Sub’s business.
(d) SPAC
is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(e) SPAC
has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure
controls and procedures are designed to ensure that material information relating to SPAC and other material information required to
be disclosed by SPAC in the reports and other documents that it files or furnishes under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated
and communicated to SPAC’s principal executive officer and its principal financial officer as appropriate to allow timely decisions
regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. Such
disclosure controls and procedures are effective in timely alerting SPAC’s principal executive officer and principal financial
officer to material information required to be included in SPAC’s periodic reports required under the Exchange Act.
(f) SPAC
maintains systems of internal control over financial reporting that are sufficient to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies
and procedures sufficient to provide reasonable assurance: (i) that SPAC maintains records that in reasonable detail accurately
and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions are recorded as
necessary to permit the preparation of financial statements in conformity with GAAP; (iii) that receipts and expenditures are being
made only in accordance with authorizations of management and the SPAC Board; and (iv) regarding prevention or timely detection
of unauthorized acquisition, use or disposition of its assets that could have a material effect on its financial statements. SPAC has
delivered to the Company a true and complete copy of any disclosure (or, if unwritten, a summary thereof) by any Representative of SPAC
to SPAC’s independent auditors relating to any material weaknesses in internal controls and any significant deficiencies in the
design or operation of internal controls that would adversely affect the ability of SPAC to record, process, summarize and report financial
data. SPAC has no knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees
or consultants who have or had a significant role in the internal control over financial reporting of SPAC. Since May 4, 2021, there
have been no material changes in SPAC internal control over financial reporting.
(g) There
are no outstanding loans or other extensions of credit made by SPAC to any executive officer (as defined in Rule 3b-7 under the
Exchange Act) or director of SPAC. SPAC has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(h) Neither
SPAC (including any employee thereof) nor SPAC’s independent auditors has identified or been made aware of (i) any significant
deficiency or material weakness in the system of internal accounting controls utilized by SPAC, (ii) any fraud, whether or not material,
that involves SPAC’s management or other employees who have a role in the preparation of financial statements or the internal accounting
controls utilized by SPAC or (iii) any claim or allegation regarding any of the foregoing.
(i) As
of the date hereof, there are no outstanding SEC comments from the SEC with respect to the SPAC SEC Reports. To the knowledge of SPAC,
none of the SPAC SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.
Section 5.08
Absence of Certain Changes or Events. Since May 4, 2021, except as expressly
contemplated by this Agreement, (a) SPAC has conducted its business in the ordinary course and in a manner consistent with past
practice, (b) there has not been any SPAC Material Adverse Effect and (c) (c) SPAC has not taken any action that, if taken
after the date of this Agreement, would constitute a material breach of any of the covenants set forth in Section 6.02(b).
Section 5.09
Absence of Litigation. There is no Action pending or, to the knowledge
of SPAC, threatened against SPAC, or any property or asset of SPAC, before any Governmental Authority or person. Neither SPAC nor any
material property or asset of SPAC is subject to any continuing order of, consent decree, settlement agreement or other similar written
agreement with, or, to the knowledge of SPAC, continuing investigation by, any Governmental Authority.
Section 5.10
Board Approval; Vote Required. The SPAC Board, by resolutions duly adopted by majority vote of those voting at a meeting
duly called and held and not subsequently rescinded or modified in any way, has duly (i) determined that this Agreement and the
Transactions are fair to and in the best interests of SPAC and its stockholders, (ii) approved this Agreement and the Transactions
and declared their advisability, (iii) recommended that the stockholders of SPAC approve and adopt this Agreement and Merger, and
directed that this Agreement and the Merger, be submitted for consideration by the stockholders of SPAC at the SPAC Stockholders’
Meeting.
(b) The
only vote of the holders of any class or series of capital stock of SPAC necessary to approve the Transactions is the affirmative vote
of the holders of a majority of the outstanding shares of SPAC Common Stock.
(c) The
Merger Sub Board, by resolutions duly adopted by written consent and not subsequently rescinded or modified in any way, has duly (i) determined
that this Agreement and the Merger are fair to and in the best interests of Merger Sub and its sole stockholder, (ii) approved this
Agreement and the Merger and declared their advisability, (iii) recommended that the sole stockholder of Merger Sub approve and
adopt this Agreement and approve the Merger and directed that this Agreement and the Transactions be submitted for consideration by the
sole stockholder of Merger Sub.
(d) The
only vote of the holders of any class or series of capital stock of Merger Sub is necessary to approve this Agreement, the Merger and
the other Transaction is the affirmative vote of the holders of a majority of the outstanding shares of Merger Sub Common Stock.
(e) SPAC,
as the sole stockholder and of Merger Sub, by resolutions duly adopted by written consent and not subsequently rescinded or modified
in any way, has duly (i) determined that this Agreement and the Merger are fair to, and in the best interests of, Merger Sub and
SPAC and (ii) approved and adopted this Agreement and the Merger.
Section 5.11
No Prior Operations of Merger Sub. Merger Sub was formed solely
for the purpose of engaging in the Transactions and has not engaged in any business activities or conducted any operations or incurred
any obligation or liability, other than as contemplated by this Agreement. Except as contemplated by this Agreement, Merger Sub will
have no material assets, liabilities or obligations at all times prior to the Effective Time.
Section 5.12
Brokers; Underwriter. Other than EF Hutton, division of Benchmark Investment,
LLC (“EF Hutton”), B. Riley Securities, Inc., R.F. Lafferty & Co., Inc. and ARC Group Limited,
no broker, finder, underwriter or investment banker is entitled to any brokerage, finder’s, underwriter’s fee or other fee
or commission in connection with the Transactions based upon arrangements made by or on behalf of SPAC or Merger Sub.
Section 5.13
SPAC Trust Fund. As of the date of this Agreement, SPAC has no less
than $11,606,169 in the trust fund established by SPAC for the benefit of its public stockholders (the “Trust Fund”)
maintained in a trust account at J.P. Morgan Chase Bank, N.A. (the “Trust Account”). The monies of such Trust Account
are invested in United States Government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated
under the Investment Company Act of 1940, as amended, and held in trust by Continental Stock Transfer & Trust Company (the “Trustee”)
pursuant to the Investment Management Trust Agreement, dated as of May 4, 2021, between SPAC and the Trustee (the “Trust
Agreement”). The Trust Agreement has not been amended or modified and is valid and in full force and effect and is enforceable
in accordance with its terms, subject to the Remedies Exceptions, and no termination, repudiation, rescission, amendment, supplement
or modification is contemplated. SPAC has complied in all material respects with the terms of the Trust Agreement and is not in breach
thereof or default thereunder and there does not exist under the Trust Agreement any event which, with the giving of notice or the lapse
of time, would constitute such a breach or default by SPAC or the Trustee. There are no separate contracts, agreements, side letters
or other understandings (whether written or unwritten, express or implied): (i) between SPAC and the Trustee that would cause the
description of the Trust Agreement in the SPAC SEC Reports to be inaccurate in any material respect; or (ii) to the knowledge of
SPAC, that would entitle any person (other than stockholders of SPAC who shall have elected to redeem their shares of SPAC Common Stock
pursuant to the SPAC Organizational Documents) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the
funds held in the Trust Account may be released except: (A) to pay income and franchise Taxes from any interest income earned in
the Trust Account; and (B) upon the exercise of SPAC Redemption Rights in accordance with the provisions of the SPAC Organizational
Documents. As of the date hereof, there are no Actions pending or, to the knowledge of SPAC, threatened in writing with respect to the
Trust Account. Upon consummation of the Merger and notice thereof to the Trustee pursuant to the Trust Agreement, SPAC shall cause the
Trustee to, and the Trustee shall thereupon be obligated to, release to SPAC as promptly as practicable, the Trust Funds in accordance
with the Trust Agreement at which point the Trust Account shall terminate; provided, however that the liabilities and obligations
of SPAC due and owing or incurred at or prior to the Effective Time shall be paid as and when due, including all amounts payable (a) to
stockholders of SPAC who shall have exercised their SPAC Redemption Rights, (b) with respect to filings, applications and/or other
actions taken pursuant to this Agreement required under Law, (c) to the Trustee for fees and costs incurred in accordance with the
Trust Agreement; and (d) to third parties (e.g., professionals, printers, etc.) who have rendered services to SPAC in connection
with its efforts to effect the Merger (including fees owed by SPAC to EF Hutton pursuant to that certain Underwriting Agreement, dated
May 4, 2021, between EF Hutton and SPAC. As of the date hereof, assuming the accuracy of the representations and warranties of the
Company herein and the compliance by the Company with its respective obligations hereunder, SPAC has no reason to believe that any of
the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available
to SPAC at the Effective Time.
Section 5.14 Employees.
Other than any officers as described in the SPAC SEC Reports, SPAC and Merger Sub have never employed any employees or retained any contractors.
Other than reimbursement of any out-of-pocket expenses incurred by SPAC’s officers and directors in connection with activities
on SPAC’s behalf in an aggregate amount not in excess of the amount of cash held by SPAC outside of the Trust Account, SPAC has
no unsatisfied material liability with respect to any employee, officer or director. SPAC and Merger Sub have never and do not currently
maintain, sponsor, contribute to or have any direct liability under any employee benefit plan (as defined in Section 3(3) of
ERISA), nonqualified deferred compensation plan subject to Section 409A of the Code, bonus, stock option, stock purchase, restricted
stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, change in control, fringe
benefit, sick pay and vacation plans or arrangements or other employee benefit plans, programs or arrangements. Neither the execution
and delivery of this Agreement nor the other Ancillary Agreements nor the consummation of the Transactions will (i) result in any
payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any director, officer
or employee of SPAC, or (ii) result in the acceleration of the time of payment or vesting of any such benefits. The Transactions
shall not be the direct or indirect cause of any amount paid or payable by the SPAC, Merger Sub or any affiliate being classified as
an “excess parachute payment” under Section 280G of the Code or the imposition of any additional Tax under Section 409A(a)(1)(B) of
the Code. There is no contract, agreement, plan or arrangement to which SPAC or Merger Sub is a party which requires payment by any party
of a Tax gross-up or Tax reimbursement payment to any person.
Section 5.15 Taxes.
(a) SPAC
and Merger Sub (i) have duly and timely filed (taking into account any extension of time within which to file) all material Tax
Returns required to be filed by any of them as of the date hereof and all such filed Tax Returns are complete and accurate in all material
respects; (ii) have timely paid all Taxes that are shown as due on such filed Tax Returns and any other material Taxes that SPAC
or Merger Sub are otherwise obligated to pay, except with respect to current Taxes not yet due and payable or otherwise being contested
in good faith or that are described in clause (a)(v) below; (iii) with respect to all material Tax Returns filed by or with
respect to any of them, have not waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect
to a Tax assessment or deficiency; (iv) do not have any deficiency, audit, examination, investigation or other proceeding in respect
of a material amount of Taxes or material Tax matters pending or threatened in writing, for a Tax period which the statute of limitations
for assessments remains open; and (v) have provided adequate reserves in accordance with GAAP in the most recent consolidated financial
statements of SPAC, for any material Taxes of SPAC that have not been paid, whether or not shown as being due on any Tax Return.
(b) Neither
SPAC nor Merger Sub is a party to, is bound by or has an obligation under any Tax sharing agreement, Tax indemnification agreement, Tax
allocation agreement or similar contract or arrangement (including any agreement, contract or arrangement providing for the sharing or
ceding of credits or losses) or has a potential liability or obligation to any person as a result of or pursuant to any such agreement,
contract, arrangement or commitment other than an agreement, contract, arrangement or commitment the primary purpose of which does not
relate to Taxes and which is not entered into with any affiliate or direct or indirect owner of SPAC.
(c) None
of SPAC or Merger Sub will be required to include any material item of income in, or exclude any material item of deduction from, taxable
income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting
for a taxable period ending on or prior to the Closing Date under Section 481(c) of the Code (or any corresponding or similar
provision of state, local or foreign income Tax Law); (ii) “closing agreement” as described in Section 7121 of
the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date;
or (iii) installment sale made on or prior to the Closing Date.
(d) Neither
SPAC nor Merger Sub has been a member of an affiliated group filing a consolidated, combined or unitary U.S. federal, state, local or
foreign income Tax Return.
(e) Neither
SPAC nor Merger Sub has any material liability for the Taxes of any person (other than SPAC and Merger Sub) under Treasury Regulation
section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by contract, or otherwise.
(f) Neither
SPAC nor Merger Sub has any request for a material ruling in respect of Taxes pending between SPAC and/or Merger Sub, on the one hand,
and any Tax authority, on the other hand.
(g) Neither
SPAC nor Merger Sub has within the last two years distributed stock of another person, or has had its stock distributed by another person,
in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(h) Neither
SPAC nor Merger Sub has engaged in or entered into a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(i) Neither
the IRS nor any other United States or non-United States taxing authority or agency has asserted in writing any deficiency or claim for
any material Taxes against SPAC that has not been resolved.
(j)
There are no material Tax Liens upon any assets of SPAC except
for Permitted Liens.
(k) SPAC
and Merger Sub have not taken any action, nor to the knowledge of SPAC are there any facts or circumstances, that would reasonably be
expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the
Code and the Treasury Regulations.
Section 5.16
Listing. The issued and outstanding SPAC Units are registered pursuant
to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “MAQCU”. The issued
and outstanding shares of SPAC Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are
listed for trading on Nasdaq under the symbol “MAQC”. The issued and outstanding SPAC Warrants are registered pursuant to
Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “MAQCW”. As of the date
of this Agreement, there is no Action pending or, to the knowledge of SPAC, threatened in writing against SPAC by Nasdaq or the SEC with
respect to any intention by such entity to deregister the SPAC Units, the shares of SPAC Class A Common Stock, or SPAC Warrants
or terminate the listing of SPAC on Nasdaq. None of SPAC or any of its affiliates has taken any action in an attempt to terminate the
registration of the SPAC Units, the shares of SPAC Class A Common Stock, or the SPAC Warrants under the Exchange Act.
Section 5.17
Investigation and Reliance. Each of SPAC and Merger Sub is a sophisticated purchaser and has made its own independent
investigation, review and analysis regarding the Company and the Transactions, which investigation, review and analysis were conducted
by SPAC and Merger Sub together with expert advisors, including legal counsel, that they have engaged for such purpose. SPAC, Merger
Sub and their Representatives have been provided with full and complete access to the Representatives, properties, offices, plants and
other facilities, books and records of the Company and other information that they have requested in connection with their investigation
of the Company and the Transactions. Neither SPAC nor Merger Sub is relying on any statement, representation or warranty, oral or written,
express or implied, made by the Company or any of its Representatives, except as expressly set forth in Article IV (as modified
by the Company Disclosure Schedule). Neither the Company nor any of its respective stockholders, affiliates or Representatives shall
have any liability to SPAC, Merger Sub or any of their respective stockholders, affiliates or Representatives resulting from the use
of any information, documents or materials made available to SPAC or Merger Sub or any of their Representatives, whether orally or in
writing, in any confidential information memoranda, “data rooms,” management presentations, due diligence discussions or
in any other form in expectation of the Transactions. Neither the Company nor any of its stockholders, affiliates or Representatives
is making, directly or indirectly, any representation or warranty with respect to any estimates, projections or forecasts involving the
Company.
Section 5.18
Investment Company Act. Neither SPAC nor Merger Sub is an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
Section 5.19
Takeover Statutes and Charter Provisions. The SPAC Board has taken all action necessary so that the restrictions on
business combination set forth in Section 203 of the DGCL or any similar restrictions under any foreign Laws will be inapplicable
to this Agreement and the Transactions, including the Merger and the issuance of New SPAC Common Stock. As of the date of this Agreement,
no “fair price,” “moratorium,” “control share acquisition” or other anti-takeover statute or similar
domestic or foreign Law applies with respect to SPAC or Merger Sub in connection with this Agreement, the Merger, the issuance of New
SPAC Common Stock or any of the other Transactions. As of the date of this Agreement, there is no stockholder rights plan, “poison
pill” or similar anti-takeover agreement or plan in effect to which SPAC or Merger Sub is subject, party or otherwise bound.
ARTICLE VI.
CONDUCT OF BUSINESS PENDING
THE MERGER
Section 6.01 Conduct
of Business by the Company Pending the Merger.
(a) The
Company agrees that, between the date of this Agreement and the Effective Time or the earlier termination of this Agreement in accordance
with Section 9.01 (the “Interim Period”), except as (1) expressly
contemplated by any other provision of this Agreement or any Ancillary Agreement, (2) as set forth in Section 6.01 of
the Company Disclosure Schedule, or (3) as required by applicable Law (including as may be requested or compelled by any Governmental
Authority), unless SPAC shall otherwise consent in writing (which consent shall not be unreasonably conditioned, withheld or delayed),
the Company shall conduct its business in the ordinary course of business.
(b) By
way of amplification and not limitation, except as (1) expressly contemplated by any other provision of this Agreement or any Ancillary
Agreement, (2) as set forth in Section 6.01 of the Company Disclosure Schedule, or (3) as required by applicable
Law (including as may be requested or compelled by any Governmental Authority), the Company shall not, during the Interim Period, directly
or indirectly, do any of the following without the prior written consent of SPAC (which consent shall not be unreasonably conditioned,
withheld or delayed):
(i) amend
or otherwise change the Company Certificate of Incorporation or the Company’s by-laws;
(ii) other
than in connection with the conversion of the Company Convertible Notes, issue, sell, pledge, dispose of, grant or encumber, or authorize
the issuance, sale, pledge, disposition, grant or encumbrance of, (A) any shares of any class of capital stock of the Company, or
any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership
interest (including, without limitation, any phantom interest), of the Company; provided that none of (1) the exercise of
any Company Options or (2) the grants of Company Options as set forth on Section 6.01 of the Company Disclosure Schedule
shall require the consent of SPAC; or (B) any material assets of the Company;
(iii) reclassify,
combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock, other than redemptions
of equity securities from former employees upon the terms set forth in the underlying agreements governing such equity securities;
(iv) (A) acquire
(including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation,
partnership, other business organization or any division thereof in an amount in excess of $250,000; or (B) incur any Indebtedness
for borrowed money in excess of $250,000 or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible
for, the obligations of any person, or make any loans or advances, or intentionally grant any security interest in any of its assets,
in each case, except in the ordinary course of business and consistent with past practice;
(v) adopt,
amend and/or terminate any Plan except (x) as may be required by applicable Law or is necessary in order to consummate the Transactions
or (y) in the event of annual renewals of health and welfare programs;
(vi) except
in the ordinary course of business, make any material tax election, amend a material Tax Return or settle or compromise any material
United States federal, state, local or non- United States income tax liability, in each case, that would reasonably be expected to have
an adverse and material impact on the Company;
(vii) materially
amend, or modify or consent to the termination (excluding any expiration in accordance with its terms) of any Material Contract or amend,
waive, modify or consent to the termination (excluding any expiration in accordance with its terms) of the Company’s material rights
thereunder, in each case in a manner that is adverse to the Company, taken as a whole, except in the ordinary course of business;
(viii) (x) intentionally
permit any material item of Company IP to lapse or to be abandoned, invalidated, dedicated to the public, or disclaimed, or otherwise
become unenforceable or fail to perform or make any applicable filings, recordings or other similar actions or filings, or fail to pay
all required fees and taxes required or advisable to maintain and protect its interest in each and every material item of Company IP;
or (y) transfer or license to any Person or otherwise extend, materially amend or modify any material item of Company IP (excluding
non-exclusive licenses of Company IP to Company customers in the ordinary course of business consistent with past practice); or
(ix) waive,
release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation
relating to this Agreement or the transactions contemplated hereby), 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 $250,000.
Section 6.02
Conduct of Business by SPAC and Merger Sub Pending the Merger. Except as (1) expressly contemplated by any other
provision of this Agreement or any Ancillary Agreement (including entering into any PIPE Financing Subscription Agreements), (2) set
forth on Schedule 6.02, or (3) as required by applicable Law (including as may be requested or compelled by any Governmental
Authority), SPAC agrees that from the date of this Agreement until the earlier of the termination of this Agreement and the Effective
Time, unless the Company shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or conditioned),
the businesses of SPAC and Merger Sub shall be conducted in the ordinary course of business. By way of amplification and not limitation,
except as (1) expressly contemplated by any other provision of this Agreement or any Ancillary Agreement, (2) set forth on
Schedule 6.02, or (3) required by applicable Law (including as may be requested or compelled by any Governmental Authority),
neither SPAC nor Merger Sub shall, during the Interim Period, directly or indirectly, do any of the following without the prior written
consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned:
(a) amend
or otherwise change the SPAC Organizational Documents or the Merger Sub Organizational Documents or form any subsidiary of SPAC other
than Merger Sub;
(b) declare,
set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its
capital stock, other than redemptions from the Trust Fund that are required pursuant to the SPAC Organizational Documents;
(c) reclassify,
combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the SPAC Common Stock or SPAC Warrants
except for redemptions from the Trust Fund that are required pursuant to the SPAC Organizational Documents;
(d) issue,
sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares
of any class of capital stock or other securities of SPAC or Merger Sub, or any options, warrants, convertible securities or other rights
of any kind to acquire any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom
interest), of SPAC or Merger Sub;
(e) acquire
(including, without limitation, by merger, consolidation, or acquisition of stock or assets or any other business combination) any corporation,
partnership, other business organization or enter into any strategic joint ventures, partnerships or alliances with any other person;
(f) except
in connection with a SPAC Extension, incur any Indebtedness for borrowed money or guarantee any such Indebtedness of another person or
persons, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of SPAC, as applicable,
enter into any “keep well” or other agreement to maintain any financial statement condition or enter into any arrangement
having the economic effect of any of the foregoing, in each case, except in the ordinary course of business consistent with past practice;
(g) make
any change in any method of financial accounting or financial accounting principles, policies, procedures or practices, except as required
by a concurrent amendment in GAAP or applicable Law made subsequent to the date hereof, as agreed to by its independent accountants;
(h) make
any material Tax election or settle or compromise any material United States federal, state, local or non-United States income Tax liability,
except in the ordinary course consistent with past practice;
(i) liquidate,
dissolve, reorganize or otherwise wind up the business and operations of SPAC or Merger Sub;
(j)
amend the Trust Agreement or any other agreement related to the Trust
Account;
(k) other
than as set forth on Section 6.02(k) of the Company Disclosure Schedule, enter into, renew or amend in any material
respect any transaction, agreement arrangement or understanding with any (i) present or former executive officer or director of
SPAC or Merger Sub, (ii) beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the
capital stock or equity interests of SPAC or (iii) affiliate, “associate” or member of the “immediate family”
(as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the foregoing; or
(l) enter
into any agreement or otherwise make a binding commitment to do any of the foregoing.
Section 6.03
Claims Against Trust Account. The Company agrees that, notwithstanding
any other provision contained in this Agreement, the Company does not now have, and shall not at any time prior to the Effective Time
have, any claim to, or make any claim against, the Trust Fund, regardless of whether such claim arises as a result of, in connection
with or relating in any way to, the business relationship between the Company on the one hand, and SPAC on the other hand, this Agreement,
or any other agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other
theory of legal liability (any and all such claims are collectively referred to in this Section 6.03 as the “Claims”).
Notwithstanding any other provision contained in this Agreement, the Company hereby irrevocably waives any Claim they may have, now or
in the future and will not seek recourse against the Trust Fund for any reason whatsoever in respect thereof; provided, however,
that the foregoing waiver will not limit or prohibit the Company from pursuing a claim against SPAC, Merger Sub or any other person (a) for
legal relief against monies or other assets of SPAC or Merger Sub held outside of the Trust Account or for specific performance or other
equitable relief in connection with the Transactions or (b) for damages for breach of this Agreement against SPAC (or any successor
entity) or Merger Sub in the event this Agreement is terminated for any reason and SPAC consummates a business combination transaction
with another party. In the event that the Company commences any action or proceeding against or involving the Trust Fund in violation
of the foregoing, SPAC shall be entitled to recover from the Company the associated reasonable legal fees and costs in connection with
any such action, in the event SPAC prevails in such action or proceeding.
ARTICLE VII.
ADDITIONAL AGREEMENTS
Section 7.01 Proxy
Statement; Registration Statement.
(a) As
promptly as practicable after the execution of this Agreement, (i) SPAC and the Company shall prepare and file with the SEC a joint
consent solicitation/proxy statement (as amended or supplemented, the “Proxy Statement”) to be sent to the stockholders
of SPAC and to the stockholders of the Company relating to (A) with respect to the Company’s stockholders, the action to be
taken by certain stockholders of the Company pursuant to the Written Consent and (B) with respect to SPAC’s stockholders,
the special meeting of SPAC’s stockholders (the “SPAC Stockholders’ Meeting”) to be held to consider approval
and adoption of (1) this Agreement and the Merger, (2) the issuance of New SPAC Common Stock as contemplated by this Agreement,
(3) the second amended and restated SPAC Certificate of Incorporation as set forth on Exhibit B-1, (4) the Stock
Incentive Plan and (5) any other proposals the Parties deem necessary to effectuate the Transactions (collectively, the “SPAC
Proposals”) and (ii) SPAC shall prepare and file with the SEC a registration statement on Form S-4 (together with
all amendments thereto, the “Registration Statement”) in which the Proxy Statement shall be included as a prospectus,
in connection with the registration under the Securities Act of the shares of New SPAC Common Stock (A) to be issued to the stockholders
of the Company pursuant to this Agreement and (B) held by the stockholders of SPAC immediately prior to the Effective Time. SPAC
and the Company each shall use their reasonable best efforts to (i) cause the Registration Statement when filed with the SEC to
comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable
to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement, (iii) cause the
Registration Statement to be declared effective under the Securities Act as promptly as practicable and (iv) to keep the Registration
Statement effective as long as is necessary to consummate the Transactions. Prior to the effective date of the Registration Statement,
SPAC shall take all or any action required under any applicable federal or state securities laws in connection with the issuance of shares
of New SPAC Common Stock, in each case to be issued or issuable to the stockholders of the Company pursuant to this Agreement. As promptly
as practicable after finalization of the Proxy Statement, each of the Company and SPAC shall mail the Proxy Statement to their respective
stockholders. Each of SPAC and the Company shall furnish all information concerning it as may reasonably be requested by the other party
in connection with such actions and the preparation of the Registration Statement and the Proxy Statement.
(b) No
filing of, or amendment or supplement to the Proxy Statement or the Registration Statement will be made by SPAC or the Company without
the approval of the other Party (such approval not to be unreasonably withheld, conditioned or delayed). SPAC and the Company each will
advise the other, promptly after they receive notice thereof, of the time when the Registration Statement has become effective or any
supplement or amendment has been filed, of the issuance of any stop order, of the suspension of the qualification of the New SPAC Common
Stock to be issued or issuable to the stockholders of the Company in connection with this Agreement for offering or sale in any jurisdiction,
or of any request by the SEC for amendment of the Proxy Statement or the Registration Statement or comments thereon and responses thereto
or requests by the SEC for additional information. Each of SPAC and the Company shall cooperate and mutually agree upon (such agreement
not to be unreasonably withheld or delayed), any response to comments of the SEC or its staff with respect to the Proxy Statement or
the Registration Statement and any amendment to the Proxy Statement or the Registration Statement filed in response thereto.
(c) SPAC
represents that the information supplied by SPAC for inclusion in the Registration Statement and the Proxy Statement shall not, at (i) the
time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment thereof or supplement
thereto) is first mailed to the stockholders of SPAC and the Company, (iii) the time of the SPAC Stockholders’ Meeting, and
(iv) the Effective Time, contain any untrue statement of a material fact or fail to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
If, at any time prior to the Effective Time, any event or circumstance relating to SPAC or Merger Sub, or their respective officers or
directors, should be discovered by SPAC which should be set forth in an amendment or a supplement to the Registration Statement or the
Proxy Statement, SPAC shall promptly inform the Company. All documents that SPAC is responsible for filing with the SEC in connection
with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements
of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
(d) The
Company represents that the information supplied by the Company for inclusion in the Registration Statement and the Proxy Statement shall
not, at (i) the time the Registration Statement is declared effective, (ii) the time the Proxy Statement (or any amendment
thereof or supplement thereto) is first mailed to the stockholders of SPAC and the Company, (iii) the time of the SPAC Stockholders’
Meeting, and (iv) the Effective Time, contain any untrue statement of a material fact or fail to state any material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading. If, at any time prior to the Effective Time, any event or circumstance relating to the Company, or its officers or directors,
should be discovered by the Company which should be set forth in an amendment or a supplement to the Registration Statement or the Proxy
Statement, the Company shall promptly inform SPAC. All documents that the Company is responsible for filing with the SEC in connection
with the Merger or the other Transactions will comply as to form and substance in all material respects with the applicable requirements
of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.
Section 7.02 SPAC
Stockholders’ Meetings; Merger Sub Stockholder’s Approval.
(a) SPAC
shall call and hold the SPAC Stockholders’ Meeting as promptly as practicable after the date on which the Registration Statement
becomes effective for the purpose of voting solely upon the SPAC Proposals, and SPAC shall use its reasonable best efforts to hold the
SPAC Stockholders’ Meeting as soon as practicable after the date on which the Registration Statement becomes effective (but in
any event no later than 25 days after the date on which the Proxy Statement is mailed to stockholders of SPAC). SPAC shall use its reasonable
best efforts to obtain the approval of the SPAC Proposals at the SPAC Stockholders’ Meeting, including by soliciting from its stockholders
proxies as promptly as possible in favor of the SPAC Proposals, and shall take all other action necessary or advisable to secure the
required vote or consent of its stockholders. The SPAC Board shall recommend to its stockholders that they approve the SPAC Proposals
and shall include such recommendation in the Proxy Statement.
(b) Promptly
following the execution of this Agreement, SPAC shall approve and adopt this Agreement and approve the Merger and the other Transactions,
as the sole stockholder of Merger Sub.
Section 7.03
Company Stockholders’ Written Consent. As promptly as practicable after
the Registration Statement becomes effective, the Company shall seek the irrevocable written consent (the “Written Consent”)
of holders of the Company Stockholder Requisite Approval (including the Key Company Stockholders) in favor of the approval and adoption
of this Agreement, the Merger and the other Transactions.
Section 7.04 Access
to Information; Confidentiality.
(a) During
the Interim Period, the Company and SPAC shall (and shall cause their respective subsidiaries and instruct their respective Representatives
to): (i) provide to the other Party (and the other Party’s officers, directors, employees, accountants, consultants, legal
counsel, agents and other representatives, collectively, “Representatives”) reasonable access during normal business
hours and upon reasonable prior notice to the officers, employees, agents, properties, offices and other facilities of such Party and
its subsidiaries and to the books and records thereof, provided that such access shall not include any unreasonably invasive or intrusive
investigations or other testing, sampling or analysis of any properties, facilities or equipment of the Company without the prior written
consent of the Company; and (ii) furnish promptly to the
other Party such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of such
Party and its subsidiaries as the other Party or its Representatives may reasonably request. Notwithstanding the foregoing, but without
limiting the Company’s obligations under Section 7.08, neither the Company nor SPAC shall be required to provide access
to or disclose information to the extent such Party has been advised by legal counsel that the access or disclosure would (x) violate
its obligations of confidentiality or similar legal restrictions with respect to such information, (y) jeopardize the protection
of attorney-client privilege or (z) contravene applicable Law (it being agreed that the Parties shall use their commercially reasonable
efforts to cause such information to be provided in a manner that would not result in such inconsistency, conflict, jeopardy or contravention).
(b) All
information obtained by the Parties pursuant to this Section 7.04 shall be kept confidential in accordance with the confidentiality
agreement, dated May 25, 2023 (the “Confidentiality Agreement”), between SPAC and the Company.
(c) Notwithstanding
anything in this Agreement to the contrary, each Party (and its Representatives) may consult any tax advisor regarding the tax treatment
and tax structure of the Transactions and may disclose to any other person, without limitation of any kind, the tax treatment and tax
structure of the Transactions and all materials (including opinions or other tax analyses) that are provided relating to such treatment
or structure, in each case in accordance with the Confidentiality Agreement.
Section 7.05 No
Solicitation.
(a) During
the Interim Period, the Company shall not and shall direct its Representatives not to, (i) initiate, solicit, knowingly facilitate
or knowingly encourage (including by way of furnishing non- public information), whether publicly or otherwise, any inquiries with respect
to, or the making of, any Company Acquisition Proposal, (ii) engage in any negotiations or discussions concerning, or provide access
to its properties, books and records or any Confidential Information or data to, any person relating to a Company Acquisition Proposal,
(iii) enter into, engage in and maintain discussions or negotiations with respect to any Company Acquisition Proposal (or inquiries,
proposals or offers or other efforts that would reasonably be expected to lead to any Company Acquisition Proposal) or otherwise cooperate
with or assist or participate in, or knowingly facilitate any such inquiries, proposals, offers, efforts, discussions or negotiations,
(iv) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities
of the Company, (v) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Company Acquisition
Proposal, (vi) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding,
term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written
arrangement relating to any Company Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to a Company
Acquisition Proposal, or (vii) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives
to take any such action. The Company shall and shall instruct its Representatives, to immediately cease any solicitations, discussions
or negotiations with any person (other than the Parties and their respective Representatives) in connection with a Company Acquisition
Proposal, and the Company acknowledges that any action taken
by it or any of its Representatives inconsistent with the restrictions set forth in this Section 7.05(a), whether or not
such Representative is purporting to act on the Company’s behalf, shall be deemed to constitute a breach of this Section 7.05(a) by
the Company.
(b) During
the Interim Period, SPAC shall not take, nor shall it permit any of its affiliates or Representatives to take, whether directly or indirectly,
any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage,
respond, provide information to or commence due diligence with respect to, any person (other than the Company, its stockholders and/or
any of their affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or
result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any business combination transaction (a
“Business Combination Proposal”) other than with the Company, its stockholders and its affiliates and Representatives.
SPAC shall, and shall cause its affiliates and Representatives to, immediately cease any and all existing discussions or negotiations
with any person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business
Combination Proposal.
Section 7.06 Employee
Benefits Matters.
(a) SPAC
shall, or shall cause the Surviving Corporation and each of its subsidiaries, as applicable, to provide the employees of the Company
who remain employed immediately after the Effective Time (the “Continuing Employees”) credit for purposes of eligibility
to participate, vesting and determining the level of benefits, as applicable, under any employee benefit plan, program or arrangement
established or maintained by the Surviving Corporation or any of its subsidiaries (including, without limitation, any employee benefit
plan as defined in Section 3(3) of ERISA and any vacation or other paid time-off program or policy) for service accrued or
deemed accrued prior to the Effective Time with the Company; provided, however, that such crediting of service shall not
operate to duplicate any benefit or the funding of any such benefit. In addition, SPAC shall use commercially reasonable efforts to (i) cause
to be waived any eligibility waiting periods, any evidence of insurability requirements and the application of any pre-existing condition
limitations under each of the employee benefit plans established or maintained by the Surviving Corporation or any of its subsidiaries
that cover the Continuing Employees or their dependents, and (ii) cause any eligible expenses incurred by any Continuing Employee
and his or her covered dependents, during the portion of the plan year in which the Closing occurs, under those health and welfare benefit
plans in which such Continuing Employee currently participates to be taken into account under those health and welfare benefit plans
in which such Continuing Employee participates subsequent to the Closing Date for purposes of satisfying all deductible, coinsurance,
and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan
year. Following the Closing, Surviving Corporation will honor all accrued but unused vacation and other paid time off of the Continuing
Employees that existed immediately prior to the Closing.
(b) SPAC
shall, or shall cause the Surviving Corporation to, assume, honor and fulfill all of the Plans in accordance with their terms as in effect
immediately prior to the Closing Date, as such Plans may be modified or terminated from time to time in accordance with their terms.
(c) The
provisions of this Section 7.06 are solely for the benefit of the Parties, and nothing contained in this Agreement, express
or implied, shall confer upon any Continuing Employee or legal representative or beneficiary or dependent thereof, or any other person,
any rights or remedies of any nature or kind whatsoever under or by reason of this Agreement, whether as a third-party beneficiary or
otherwise, including, without limitation, any right to employment or continued employment for any specified period, or level of compensation
or benefits. Nothing contained in this Agreement, express or implied, shall constitute an amendment or modification of any employee benefit
plan of the Company or shall require the Company, SPAC, the Surviving Corporation and each of its subsidiaries to continue any Plan or
other employee benefit arrangements, or prevent their amendment, modification or termination.
Section 7.07 Directors’
and Officers’ Indemnification; D&O Tail.
(a) The
certificate of incorporation and by-laws of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification,
advancement or expense reimbursement than are set forth in the by-laws of the Company, which provisions shall not be amended, repealed
or otherwise modified for a period of six years from the Effective Time in any manner that would affect adversely the rights thereunder
of individuals who, at or prior to the Effective Time, were directors, officers, employees, fiduciaries or agents of the Company, unless
such modification shall be required by applicable Law.
(b) Each
of SPAC and the Surviving Corporation shall purchase (which shall be paid for in full by SPAC) and have in place at the Closing a “tail”
or “runoff” policy (the “D&O Tail”) providing directors’ and officers’ liability insurance
coverage for the benefit of those persons who are covered by the directors’ and officers’ liability insurance policies maintained
by the Company or SPAC as of the Closing with respect to matters occurring prior to the Effective Time. The D&O Tail shall provide
for terms with respect to coverage, deductibles and amounts that are no less favorable than those of the policy in effect immediately
prior to the Effective Time for the benefit of the Company’s directors and officers, and shall remain in effect for the six-year
period following the Closing.
Section 7.08
Notification of Certain Matters. The Company shall give prompt notice to SPAC, and SPAC shall give prompt notice to
the Company, of any event which a Party becomes aware of during the Interim Period, the occurrence, or non-occurrence of which causes
or would reasonably be expected to cause any of the conditions set forth in Article VIII to fail. No notification given by SPAC
or the Company under this Section 7.08 shall limit or otherwise affect any of the representations, warranties, covenants or obligations
of such Party contained in this Agreement.
Section 7.09 Further
Action; Reasonable Best Efforts.
(a) Upon
the terms and subject to the conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause
to be taken, appropriate action, and to do, or cause to be done, such things as are necessary, proper or advisable under applicable Laws
or otherwise to consummate and make effective the Transactions, including, without limitation, using its reasonable best efforts to obtain
all permits, consents, approvals, authorizations, qualifications and orders of Governmental Authorities and parties to contracts with
the Company necessary for the consummation of the Transactions and to fulfill the conditions to the Merger. In case, at any time after
the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and
directors of each Party shall use their reasonable best efforts to take all such action.
(b) Each
of the Parties shall keep each other apprised of the status of matters relating to the Transactions, including promptly notifying the
other Parties of any communication it or any of its affiliates receives from any Governmental Authority relating to the matters that
are the subject of this Agreement and permitting the other Parties to review in advance, and to the extent practicable consult about,
any proposed communication by such Party to any Governmental Authority in connection with the Transactions. No Party shall agree to participate
in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry unless it consults with the
other Parties in advance and, to the extent permitted by such Governmental Authority, gives the other Parties the opportunity to attend
and participate at such meeting. Subject to the terms of the Confidentiality Agreement, the Parties will coordinate and cooperate fully
with each other in exchanging such information and providing such assistance as the other Parties may reasonably request in connection
with the foregoing. Subject to the terms of the Confidentiality Agreement, the Parties will provide each other with copies of all material
correspondence, filings or communications, including any documents, information and data contained therewith, between them or any of
their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this
Agreement and the Transactions. No Party shall take or cause to be taken any action before any Governmental Authority that is inconsistent
with or intended to delay its action on requests for a consent or the consummation of the Transactions.
Section 7.10
Public Announcements. The initial press release relating to this Agreement
shall be a joint press release the text of which has been agreed to by each of SPAC and the Company. Thereafter, during the Interim Period,
unless otherwise prohibited by applicable Law or the requirements of Nasdaq, each of SPAC and the Company shall each use its reasonable
best efforts to consult with each other before issuing any press release or otherwise making any public statements with respect to this
Agreement, the Merger or any of the other Transactions, and shall not issue any such press release or make any such public statement
without the prior written consent of the other Party. Furthermore, nothing contained in this Section 7.10 shall prevent SPAC or
the Company and/or its respective affiliates from furnishing customary or other reasonable information concerning the Transactions to
their investors and prospective investors.
Section 7.11 Tax
Matters.
(a) SPAC
and the Company intend that, for United States federal income Tax purposes, the Merger will qualify for the Intended Tax Treatment. None
of the Company or SPAC knows of any fact or circumstance, or has taken or will take any action, if such fact, circumstance or action
would be reasonably expected to cause the Merger to fail to qualify for the Intended Tax Treatment. The Merger shall be reported by the
Parties for all Tax purposes in accordance with the foregoing, unless otherwise required by a Governmental Authority as a result of a
“determination” within the meaning of Section 1313(a) of the Code. The Parties shall cooperate with each other
and their respective counsel to document and support the Tax treatment of the Merger as a “reorganization” within the meaning
of Section 368(a) of the Code, including providing factual support letters.
(b) On
or prior to the Closing, the Company shall deliver to SPAC a properly executed certification that shares of Company’s capital stock
and any other interests in the Company are not “U.S. real property interests” in accordance with the Treasury Regulations
under Sections 897 and 1445 of the Code, together with a notice to the IRS (which shall be filed by the Company with the IRS following
the Closing) in accordance with the provisions of Section 1.897-2(h)(2) of the Treasury Regulations; provided, however, that
if the Company fails to deliver the foregoing certification and notice, the sole remedy of SPAC and Merger Sub shall be to withhold on
payments of consideration in accordance with and subject to the provisions Section 3.02(h) to the extent required by
applicable Law.
Section 7.12
Stock Exchange Listing. SPAC will use its reasonable best efforts to
cause the Merger Consideration issued in connection with the Transactions to be approved for listing on Nasdaq at Closing. During the
period from the date hereof until the Closing, SPAC shall use its reasonable best efforts to keep the SPAC Units, SPAC Class A Common
Stock and SPAC Warrants listed for trading on Nasdaq.
Section 7.13 Antitrust.
(a) To
the extent required under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization
or restraint of trade, including the HSR Act (“Antitrust Laws”), each Party agrees to promptly (and in connection
with the any required filings under the HSR Act, no later than ten (10) Business Days after the date of this Agreement) make any
required filing or application under Antitrust Laws, as applicable. The Parties agree to supply as promptly as reasonably practicable
any additional information and documentary material that may be requested pursuant to Antitrust Laws and to take all other actions necessary,
proper or advisable to cause the expiration or termination of the applicable waiting periods or obtain required approvals, as applicable
under Antitrust Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the HSR
Act.
(b) Each
Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the Transactions under any Antitrust
Law, use its reasonable best efforts to: (i) cooperate in all respects with each other Party or its affiliates in connection with
any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private person;
(ii) keep the other Parties reasonably informed of any communication received by such Party or its Representatives from, or given
by such Party or its Representatives to, any Governmental Authority and of any communication received or given in connection with any
proceeding by a private person, in each case regarding any of the Transactions; (iii) permit a Representative of the other Parties
and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any meeting
or conference with, any Governmental Authority or, in connection with any proceeding by a private person, with any other person, and
to the extent permitted by such Governmental Authority or other person, give a Representative or Representatives of the other Parties
the opportunity to attend and participate in such meetings and conferences; (iv) in the event a Party’s Representative is
prohibited from participating in or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably
apprised with respect thereto; and (v) use reasonable best efforts to cooperate in the filing of any memoranda, white papers, filings,
correspondence or other written communications explaining or defending the Transactions, articulating any regulatory or competitive argument,
and/or responding to requests or objections made by any Governmental Authority.
(c) No
Party shall take any action that could reasonably be expected to adversely affect or materially delay the approval of any Governmental
Authority of any required filings or applications under Antitrust Laws. The Parties further covenant and agree, with respect to a threatened
or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that
would adversely affect the ability of the Parties to consummate the Transactions, to use reasonable best efforts to prevent or lift the
entry, enactment or promulgation thereof, as the case may be.
Section 7.14
Trust Account. As of the Effective Time, the obligations of SPAC to
dissolve or liquidate within a specified time period as contained in SPAC’s Certificate of Incorporation will be terminated and
SPAC shall have no obligation whatsoever to dissolve and liquidate the assets of SPAC by reason of the consummation of the Merger or
otherwise, and no stockholder of SPAC shall be entitled to receive any amount from the Trust Account. At least 48 hours prior to the
Effective Time, SPAC shall provide notice to the Trustee in accordance with the Trust Agreement and shall deliver any other documents,
opinions or notices required to be delivered to the Trustee pursuant to the Trust Agreement and cause the Trustee prior to the Effective
Time to, and the Trustee shall thereupon be obligated to, transfer all funds held in the Trust Account to SPAC (to be held as available
cash on the balance sheet of SPAC, and to be used for working capital and other general corporate purposes of the business following
the Closing) and thereafter shall cause the Trust Account and the Trust Agreement to terminate.
Section 7.15
Stock Incentive Plan. SPAC shall, prior to the Effective Time, approve and adopt a new equity incentive plan (the “Stock
Incentive Plan”) to be effective in connection with the Closing, which shall be in such form as the Company and SPAC shall
mutually agree.
Section 7.16 SPAC
Extension.
(a) The
Company acknowledges that SPAC filed a proxy statement (as amended, the “SPAC Extension Proxy Statement”) and on May 5,
2023, received approval from the stockholders of SPAC of an amendment to the SPAC Organizational Documents, including its certificate
of incorporation, pursuant to which the deadline by which SPAC must complete its initial business combination (the “SPAC Business
Combination Deadline”) was extended for up to an additional nine one-month periods, from May 7, 2023 to up to February 7,
2024, and upon the exercise of each such extension of the SPAC Business Combination Deadline, Sponsor (or its affiliates or permitted
designees) will deposit into the Trust Account the amount set forth in the SPAC Extension Proxy Statement for each share of SPAC Class A
Common Stock that remains outstanding.
(b) Unless
the Closing has occurred or this Agreement shall have otherwise been terminated in accordance with the provisions set forth in Section 9.01,
(i) prior to February 7, 2024, SPAC shall make, or cause Sponsor to make, the deposits into the Trust Account necessary
to extend the SPAC Business Combination Deadline to February 7, 2024 as set forth in the SPAC Extension Proxy Statement and the
SPAC Organizational Documents and (ii) from and after February 7, 2024, SPAC shall use commercially reasonable efforts to take
any and all actions necessary, including filing a proxy statement, amending the SPAC Organizational Documents and obtaining the necessary
approval from the SPAC Stockholders, to further extend the SPAC Business Combination Deadline after February 7, 2024 (each extension
in clause (i) and (ii), a “SPAC Extension”) until a date mutually agreed in writing between SPAC and the Company.
Section 7.17
Company Convertible Notes. The Company shall use commercially reasonable efforts to enforce its rights under the Company
Convertible Notes and take all other actions reasonably necessary to effect the conversion of all Company Convertible Notes into shares
of Company Common Stock prior to the Exchange Effective Time pursuant to the terms and conditions of the Company Convertible Notes.
Section 7.18 PIPE
Financing.
(a) During
the Interim Period, SPAC may execute PIPE Financing Subscription Agreements mutually agreed by SPAC and the Company that would constitute
a PIPE Financing; provided that unless otherwise agreed by SPAC and the Company in writing, no such PIPE Financing Subscription
Agreement shall provide for a purchase price of shares of SPAC Class A Common Stock at a price less than the SPAC Redemption Price
per share of SPAC Class A Common Stock (including any discounts, rebates, equity kickers or promote), and (ii) no such PIPE
Financing Subscription Agreement shall provide for the issuance of any equity securities of SPAC other than shares of SPAC Class A
Common Stock. Each of SPAC and the Company shall use its commercially reasonable efforts to cooperate with each other in connection with
the arrangement of any PIPE Financing as may be reasonably requested by each other.
(b) Unless
otherwise consented in writing by the Company (which consent shall not be unreasonably withheld, conditioned or delayed), SPAC shall
not permit any amendment or modification to be made to, any waiver (in whole or in part) or provide consent to (including consent to
termination), any provision or remedy under, or any replacements of, any of the PIPE Financing Subscription Agreements. Each of the Parties
shall use its 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 to consummate the transactions contemplated by the PIPE Financing Subscription Agreements on the terms and conditions
described therein, including maintaining in effect the PIPE Financing Subscription Agreements and to: (i) satisfy on a timely basis
all conditions and covenants applicable to it in the PIPE Financing Subscription Agreements and otherwise comply with its obligations
thereunder, (ii) without limiting the rights of any party to enforce certain of such PIPE Financing Subscription Agreements, in
the event that all conditions in the PIPE Financing Subscription Agreements (other than conditions that the Company, SPAC or any of their
respective affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the closings
under the PIPE Financing Subscription Agreements) have been satisfied, consummate the transactions contemplated by the PIPE Financing
Subscription Agreements at or prior to the Closing; (iii) confer with each other regarding timing of the expected closings under
the PIPE Financing Subscription Agreements; and (iv) deliver notices to the applicable counterparties to the PIPE Financing Subscription
Agreements sufficiently in advance of the Closing to cause them to fund their obligations as far in advance of the Closing as permitted
by the PIPE Financing Subscription Agreements. Without limiting the generality of the foregoing, SPAC shall give the Company prompt written
notice: (A) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could give
rise to any breach or default) by any party to any PIPE Financing Subscription Agreements known to SPAC; (B) of the receipt of any
notice or other communication from any party to any PIPE Financing Subscription Agreements by SPAC with respect to any actual, potential,
threatened or claimed expiration, lapse, withdrawal, material breach, material default, termination or repudiation by any party to any
PIPE Financing Subscription Agreements or any provisions of any PIPE Financing Subscription Agreements; and (C) if SPAC does not
expect to receive all or any portion of the PIPE Financing Proceeds on the terms, in the manner or from one or more investors as contemplated
by the PIPE Financing Subscription Agreements. SPAC shall take all actions required under the PIPE Financing Subscription Agreements
with respect to the timely book-entry or other records evidencing the share of SPAC Class A Common Stock as and when required under
any such PIPE Financing Subscription Agreements. Each of the Parties shall use its reasonable efforts to, and shall instruct its advisors
to, keep the other Parties and the other Parties’ advisors reasonably informed with respect to the PIPE Financing during such period,
including by (i) providing regular updates and (ii) consulting and cooperating with, and considering in good faith any feedback
from, the other Parties or the other Parties’ advisors with respect to the PIPE Financing.
ARTICLE VIII.
CONDITIONS TO THE MERGER
Section 8.01 Conditions
to the Obligations of Each Party. The obligations of the Company, SPAC and Merger Sub to consummate the Transactions, including the
Merger, are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of the following conditions:
(a)
Written Consent. The Written Consent shall have been delivered
to SPAC.
(b) SPAC
Stockholders’ Approval. The SPAC Proposals shall have been approved and adopted by the requisite affirmative vote of the stockholders
of SPAC in accordance with the Proxy Statement, the DGCL, the SPAC Organizational Documents and the rules and regulations of Nasdaq.
(c) No
Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law, rule, regulation, judgment,
decree, executive order or award which is then in effect and has the effect of making the Transactions, including the Merger, illegal
or otherwise prohibiting consummation of the Transactions, including the Merger.
(d) Antitrust
Approvals and Waiting Periods. All required filings under the HSR Act shall have been completed and any applicable waiting period
(and any extension thereof) applicable to the consummation of the Transactions under the HSR Act shall have expired or been terminated,
and any pre- Closing approvals or clearances reasonably required thereunder shall have been obtained.
(e) Registration
Statement. The Registration Statement shall have been declared effective under the Securities Act. No stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no proceedings for purposes of suspending the effectiveness of the Registration
Statement shall have been initiated or be threatened by the SEC.
(f) Stock
Exchange Listing. The New SPAC Common Stock comprising the Merger Consideration to be issued pursuant to this Agreement shall have
been approved for listing on Nasdaq, subject only to official notice of issuance thereof.
(g) Net
Tangible Assets Test. Upon the Closing, after giving effect to the SPAC Redemption Rights, SPAC shall have net tangible assets of
at least $5,000,001 (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act).
Section 8.02
Conditions to the Obligations of SPAC and Merger Sub. The obligations of
SPAC and Merger Sub to consummate the Transactions, including the Merger, are subject to the satisfaction or waiver (where permissible)
at or prior to the Closing of the following additional conditions:
(a) Representations
and Warranties. The representations and warranties of the Company contained in Section 4.01 (Organization and Qualification;
Subsidiaries), Section 4.04 (Authority Relative to this Agreement), Section 4.08(b) (Absence of Certain
Changes or Events) and Section 4.19 (Brokers) shall each be true and correct in all respects as of the Closing Date as
though made on the Closing Date, except to the extent that any such representation and warranty expressly speaks as of an earlier date,
in which case such representation and warranty shall be true and correct as of such earlier date. The representations and warranties
of the Company contained in Section 4.03 (Capitalization), shall each be true and correct in all respects other than de minimis
inaccuracies as of the Closing Date as though made on the Closing Date, except to the extent that any such representation and warranty
expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date.
All other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving any effect
to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth
therein) in all respects as of the Closing Date, as though made on and as of the Closing Date, except (i) to the extent that any
such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true
and correct as of such earlier date and (ii) where the failure of such representations and warranties to be true and correct (whether
as of the Closing Date or such earlier date), taken as a whole, does not result in a Company Material Adverse Effect.
(b) Agreements
and Covenants. The Company shall have performed or complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the Effective Time.
(c) Material
Adverse Effect. No Company Material Adverse Effect shall have occurred between the date of this Agreement and the Closing Date.
(d) Officer
Certificate. The Company shall have delivered to SPAC a certificate, dated the date of the Closing, signed by an officer of the Company,
certifying as to the satisfaction of the conditions specified in Section 8.02(a), Section 8.02(b) and Section 8.02(c).
(e) Resignation.
Other than those persons identified as continuing directors or officers on Exhibit C, all members of the Company Board and
officers of the Company shall have executed written resignations effective as of the Effective Time.
(f) Registration
Rights and Lock-Up Agreement. All parties to the Registration Rights and Lock-Up Agreement (other than SPAC and the holders of equity
securities of SPAC prior to the Closing contemplated to be a party thereto) shall have delivered, or cause to be delivered, to SPAC a
copy of the Registration Rights and Lock-Up Agreement duly executed by all such parties.
Section 8.03
Conditions to the Obligations of the Company. The obligations of the Company to consummate the Transactions, including
the Merger, are subject to the satisfaction or waiver (where permissible) at or prior to Closing of the following additional conditions:
(a) Representations
and Warranties. The representations and warranties of SPAC and Merger Sub contained in Section 5.01 (Corporate Organization),
Section 5.04 (Authority Relative to this Agreement), Section 5.08(b) (Absence of Certain Changes or Events)
and Section 5.12 (Brokers) shall each be true and correct in all respects as of the Closing Date as though made on the Closing
Date, except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation
and warranty shall be true and correct as of such earlier date. The representations and warranties of SPAC and Merger Sub contained in
Section 5.03 (Capitalization) shall each be true and correct in all respects other than de minimis inaccuracies as of the
Closing Date as though made on the Closing Date, except to the extent that any such representation and warranty expressly speaks as of
an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date. All other representations
and warranties of SPAC and Merger Sub contained in this Agreement shall be true and correct (without giving any effect to any limitation
as to “materiality” or “SPAC Material Adverse Effect” or any similar limitation set forth therein) in all respects
as of the Closing Date, as though made on and as of the Closing Date, except (i) to the extent that any such representation and
warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such
earlier date and (ii) where the failure of such representations and warranties to be true and correct (whether as of the Closing
Date or such earlier date), taken as a whole, does not result in an SPAC Material Adverse Effect.
(b) Agreements
and Covenants. SPAC and Merger Sub shall have performed or complied in all material respects with all agreements and covenants required
by this Agreement to be performed or complied with by it on or prior to the Effective Time.
(c) Material
Adverse Effect. No SPAC Material Adverse Effect shall have occurred between the date of this Agreement and the Closing Date.
(d) Officer
Certificate. SPAC shall have delivered to the Company a certificate, dated the date of the Closing, signed by the President of SPAC,
certifying as to the satisfaction of the conditions specified in Section 8.03(a), Section 8.03(b) and Section 8.03(c).
(e) Registration
Rights and Lock-Up Agreement. SPAC and the holders of equity securities of SPAC prior to the Closing contemplated to be a party thereto
shall have delivered a copy of the Registration Rights and Lock-Up Agreement duly executed by SPAC and such holders of equity securities
of SPAC.
(f) Resignations.
Other than those persons identified as continuing directors or officers on Exhibit C, all members of the SPAC Board and all
officers of SPAC shall have executed written resignations effective as of the Effective Time.
(g) Indebtedness
of SPAC. As of the Closing, SPAC shall (i) not have any Indebtedness other than the Sponsor Debt and (ii) provide evidence
thereof to the Company.
(h) Sponsor
Promissory Notes. SPAC shall deliver to the Company copies of the amendments to the Sponsor Promissory Notes in connection with the
Sponsor Debt pursuant to, and in accordance with, the Sponsor Support Agreement.
ARTICLE IX.
TERMINATION, AMENDMENT
AND WAIVER
Section 9.01 Termination. This Agreement may be terminated and the Merger and the other Transactions may be abandoned at any time
prior to the Effective Time, notwithstanding any requisite approval and adoption of this Agreement and the Transactions by the stockholders
of the Company or SPAC, as follows:
(a) by mutual written consent of SPAC and the Company; or
(b) by
either SPAC or the Company if the Effective Time shall not have occurred prior to February 7, 2024 (the “Outside Date”);
provided, however, that this Agreement may not be terminated under this Section 9.01(b) by or on behalf
of any party that either directly or indirectly through its affiliates is in breach or violation of any representation, warranty, covenant,
agreement or obligation contained herein and such breach or violation is the principal cause of the failure of a condition set forth in
Article VIII on or prior to the Outside Date; or
(c) by
either SPAC or the Company if any Governmental Authority in the United States shall have enacted, issued, promulgated, enforced or entered
any injunction, order, decree or ruling (whether temporary, preliminary or permanent) which has become final and nonappealable and has
the effect of making consummation of the Transactions, including the Merger, illegal or otherwise preventing or prohibiting consummation
of the Transactions, the Merger; or
(d) by
either SPAC or the Company if any of the SPAC Proposals shall fail to receive the requisite vote for approval at the SPAC Stockholders’
Meeting or any adjournment thereof; or
(e) by
SPAC if the Company shall have failed to deliver the Written Consent to SPAC after the Registration Statement becomes effective; or
(f) by
SPAC upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if
any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 8.02(a) or
Section 8.02(b) would not be satisfied (“Terminating Company Breach”); provided that SPAC has not
waived such Terminating Company Breach and SPAC and Merger Sub are not then in material breach of their representations, warranties, covenants
or agreements in this Agreement; provided further that, if such Terminating Company Breach is curable by the Company, SPAC may
not terminate this Agreement under this Section 9.01(f) for so long as the Company continues to exercise its reasonable efforts
to cure such breach, unless such breach is not cured within thirty (30) days after notice of such breach is provided by SPAC to the Company;
or
(g) by
the Company upon a breach of any representation, warranty, covenant or agreement on the part of SPAC and Merger Sub set forth in this
Agreement, or if any representation or warranty of SPAC and Merger Sub shall have become untrue, in either case such that the conditions
set forth in Section 8.03(a) or Section 8.03(b) would not be satisfied (“Terminating SPAC Breach”);
provided that the Company has not waived such Terminating SPAC Breach and the Company is not then in material breach of their representations,
warranties, covenants or agreements in this Agreement; provided, however, that, if such Terminating SPAC Breach is curable
by SPAC and Merger Sub, the Company may not terminate this Agreement under this Section 9.01(g) for so long as SPAC and Merger
Sub continue to exercise their reasonable efforts to cure such breach, unless such breach is not cured within thirty (30) days after notice
of such breach is provided by the Company to SPAC.
Section 9.02
Effect of Termination. In the event of the termination of this Agreement pursuant to Section 9.01, this Agreement
shall forthwith become void, and there shall be no liability under this Agreement on the part of any party hereto, except as set forth
in this Section 9.02, Article X, and any corresponding definitions set forth in Article I, or in the case of termination
subsequent to a willful material breach of this Agreement by a Party.
Section 9.03 Expenses.
(a) Except
as set forth in this Section 9.03 or elsewhere in this Agreement, all expenses (including the fees and expenses of any outside
counsel, agents, advisors, consultants, experts, financial advisors and other service providers) incurred in connection with this Agreement
and the Transactions shall be paid by the Party incurring such expenses, whether or not the Merger and the other Transactions are consummated.
SPAC shall use its reasonable best efforts to cause its advisors to take a material portion of their fees and expenses in shares of New
SPAC Common Stock.
(b) At
the Closing, upon release of funds from the Trust Account, SPAC shall pay all Outstanding Company Transaction Expenses and Outstanding
SPAC Transaction Expenses.
Section 9.04 Amendment. This Agreement may be amended in writing by the Parties at any time prior to the Effective Time. This Agreement
may not be amended except by an instrument in writing signed by each of the Parties.
Section 9.05
Waiver. At any time prior to the Effective Time, (i) SPAC may (a) extend the time for the performance of any
obligation or other act of the Company, (b) waive any inaccuracy in the representations and warranties of the Company contained herein
or in any document delivered by the Company pursuant hereto and (c) waive compliance with any agreement of the Company or any condition
to its own obligations contained herein and (ii) the Company may (a) extend the time for the performance of any obligation or
other act of SPAC or Merger Sub, (b) waive any inaccuracy in the representations and warranties of SPAC or Merger Sub contained herein
or in any document delivered by SPAC and/or Merger pursuant hereto and (c) waive compliance with any agreement of SPAC or Merger
Sub or any condition to its own obligations contained herein. Any such extension or waiver shall be valid if set forth in an instrument
in writing signed by the Party or Parties to be bound thereby.
ARTICLE X.
GENERAL PROVISIONS
Section 10.01 Notices.
All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by email or
by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or
at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.01):
if to SPAC or Merger Sub:
Maquia Capital Acquisition Corporation
c/o Maquia Investments North America, LLC
2901 Florida Ave. Suite 840, Miami, Florida, 33133
Attention: Guillermo E Cruz
Email: guillermo@maquiacapital.com
with a copy to:
Allan M. Lerner, P.A.
2888 E. Oakland Park Blvd.
Fort Lauderdale, FL 33306
Attention:
Allan M. Lerner
Email: allan@lernerpa.com
&
HomerBonner
1200 Four Seasons Tower
1441 Brickell Avenue
Miami Florida 33131
Attention.: Peter Homer
Email: phomer@ homerbonner.com
if to the Company:
Immersed Inc.
522 Congress Avenue, Suite 500
Austin, Texas 78701
Attention: Renji Bijoy
Email: renji@immersed.com
with a copy to:
Greenberg Traurig, LLP
333 S.E. 2nd Avenue, Suite 4400
Miami, FL 33131
Attention: Alan Annex
Email: alan.annex@gtlaw.com
Section 10.02 Nonsurvival of Representations, Warranties and Covenants. None of the representations, warranties, covenants, obligations
or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any
rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive
the Closing and all such representations, warranties, covenants, obligations or other agreements shall terminate and expire upon the occurrence
of the Closing (and there shall be no liability after the Closing in respect thereof), except for (a) those covenants and agreements
contained herein that by their terms expressly apply in whole or in part after the Closing and then only with respect to any breaches
occurring after the Closing,(b) this Article X and (c) any corresponding definitions set forth in Article I.
Section 10.03 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon such
determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually
acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent possible.
Section 10.04 Entire Agreement; Assignment. This Agreement and the Ancillary Agreements constitute the entire agreement among the
Parties with respect to the subject matter hereof and supersede, except as set forth in Section 7.04(b), all prior agreements and
undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof, except for the Confidentiality
Agreement. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise) by any Party without
the prior express written consent of the other Parties.
Section 10.05 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, other than Section 7.07 (which is intended to be for the benefit of the persons
covered thereby and may be enforced by such persons).
Section 10.06 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware
applicable to contracts executed in and to be performed in that State. All Actions arising out of or relating to this Agreement shall
be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction is not then available in the
Delaware Chancery Court, then any such legal Action may be brought in any federal court located in the State of Delaware or any other
Delaware state court. The Parties hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves
and with respect to their respective properties for the purpose of any Action arising out of or relating to this Agreement brought by
any Party, and (b) agree not to commence any Action relating thereto except in the courts described above in Delaware, other than
Actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described
herein. Each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties
further waive any argument that such service is insufficient. Each of the Parties hereby irrevocably and unconditionally waives, and agrees
not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action arising out of or relating to this Agreement
or the Transactions, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein
for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution
of judgment or otherwise) and (c) that (i) the Action in any such court is brought in an inconvenient forum, (ii) the venue
of such Action is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 10.07
Waiver of Jury Trial. Each of the Parties hereby waives to the fullest extent permitted by applicable Law any right
it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this
Agreement or the Transactions. Each of the Parties (a) certifies that no Representative, agent or attorney of any other Party has
represented, expressly or otherwise, that such other Party would not, in the event of litigation, seek to enforce that foregoing waiver
and (b) acknowledges that it and the other Party have been induced to enter into this Agreement and the Transactions, as applicable,
by, among other things, the mutual waivers and certifications in this Section 10.07.
Section 10.08
Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall
not affect in any way the meaning or interpretation of this Agreement.
Section 10.09 Counterparts. This Agreement may be executed and delivered (including by facsimile or portable document format (pdf)
transmission) in one or more counterparts, and by the different Parties 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.
Section 10.10 Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were
not performed in accordance with the terms hereof, and, accordingly, that the Parties shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof (including the Parties’
obligation to consummate the Merger) in the state court of the State of Delaware or, if that court does not have jurisdiction, any court
of the United States located in the State of Delaware without proof of actual damages or otherwise, in addition to any other remedy to
which they are entitled at law or in equity as expressly permitted in this Agreement. Each of the Parties hereby further waives (a) any
defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post
security or a bond as a prerequisite to obtaining equitable relief.
[Signature Page Follows.]
IN WITNESS WHEREOF,
SPAC, Merger Sub, and the Company have caused this Agreement to be executed as of the date first written above by their respective officers
thereunto duly authorized.
|
MAQUIA CAPITAL ACQUISITION CORPORATION |
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|
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By |
/s/ Jeff Ransdell |
|
Name: |
Jeff Ransdell |
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Title: |
Chief Executive Officer |
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MAQUIA MERGER SUB, INC. |
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By |
/s/ Guillermo Eduardo Cruz |
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Name: |
Guillermo Eduardo Cruz |
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Title: |
Director |
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IMMERSED INC. |
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By |
/s/ Renji Bijoy |
|
Name: |
Renji Bijoy |
|
Title: |
Chief Executive Officer |
[Signature Page to Business Combination Agreement]
IN WITNESS WHEREOF,
SPAC, Merger Sub, and the Company have caused this Agreement to be executed as of the date first written above by their respective officers
thereunto duly authorized.
|
MAQUIA CAPITAL ACQUISITION CORPORATION |
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|
|
By |
|
|
Name: |
|
|
Title: |
|
|
|
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MAQUIA MERGER SUB, INC. |
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|
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By |
|
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Name: |
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Title: |
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IMMERSED INC. |
|
|
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By |
/s/ Renji Bijoy |
|
Name: |
Renji Bijoy |
|
Title: |
Chief Executive Officer |
[Signature Page to
Business Combination Agreement]
EXHIBIT A
Registration Rights and Lock-Up Agreement
[Attached.]
Final Form
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This Registration
Rights and Lock-Up Agreement (this “Agreement”) is made and entered into as of [●], 2023 and effective
as of the Effective Time (as defined in the Business Combination Agreement (as defined below)) by and among Immersed Holding Corporation
(f/k/a Maquia Capital Acquisition Corporation), a Delaware corporation (the “Company”), and the parties listed on Schedule
A hereto (each, a “Holder” and collectively, the “Holders”). Any capitalized term used but not
defined herein will have the meaning ascribed to such term in the Business Combination Agreement.
RECITALS
WHEREAS, the Company
is party to that certain Business Combination Agreement, dated as of August 8, 2023 (the “Business Combination Agreement”),
by and among the Company, Maquia Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Merger
Sub”), and Immersed Inc., a Delaware corporation (“Immersed”), pursuant to which, among other things, Merger
Sub will merge with and into Immersed (the “Merger”), with Immersed surviving as a wholly owned subsidiary of the Company;
WHEREAS, the Company
and certain of the Holders designated as Original Holders on Schedule A hereto (the “Original Holders”) are
parties to that certain Registration Rights Agreement, dated as of May 4, 2021 (the “Prior Agreement”);
WHEREAS, as of
the Effective Time, the Original Holders hold [●] shares of the Company’s Class A common stock, par value $0.0001 per
share (the “Common Stock”);
WHEREAS, certain
of the Original Holders currently hold an aggregate of [●] warrants (the “Private Placement Warrants”) to purchase,
at an exercise price of $11.50 per share, one share of Class A Common Stock;
WHEREAS, at the
Effective Time, pursuant to the Merger and subject to, and in accordance with, the Business Combination Agreement, the shares of common
stock and preferred stock of Immersed held by certain of the Holders designated as New Holders on Schedule A hereto (the “New
Holders”) will be automatically cancelled and extinguished and converted into the right to receive shares of Common Stock (the
“Business Combination Shares”);
WHEREAS, the parties
to the Prior Agreement desire to terminate the Prior Agreement and to provide for certain rights and obligations included herein and to
include the New Holders identified herein; and
WHEREAS, in connection
with the transactions contemplated by the Business Combination Agreement, the Company and the Holders desire to enter into this Agreement,
pursuant to which the Company shall grant the Holders certain registration rights following the closing of the transactions contemplated
by the Business Combination Agreement with respect to certain securities of the Company, as set forth in this Agreement.
NOW, THEREFORE,
in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the following terms and variations thereof have the meanings set forth below:
“Adverse
Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment
of the Chief Executive Officer or Chief Financial Officer of the Company, after consultation with outside counsel to the Company, (i) would
be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not
to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein
(in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading,
(ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) the Company
has a bona fide business purpose for not making such information public.
“Agreement” shall
have the meaning given in the Preamble.
“Board” shall mean the Board of Directors of the Company.
“Business Combination Agreement”
shall have the meaning given in the Recitals hereto.
“Business Combination Shares” shall have the meaning given in
the Recitals hereto.
“Business Day” means
a day other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.
“Change
in Control” means the transfer (whether by tender offer, merger, stock purchase, consolidation or other similar transaction),
in one transaction or a series of related transactions, to a person or group of affiliated persons of the Company’s voting securities
if, after such transfer, such person or group of affiliated persons would hold more than 50% of outstanding voting securities of the Company
(or surviving entity) or would otherwise have the power to control the Board or to direct the operations of the Company.
“Commission” shall
mean the Securities and Exchange Commission.
“Common Stock” shall have the meaning given in the Recitals hereto.
“Company”
shall have the meaning given in the Preamble.
“Company Shelf Takedown Notice” shall
have the meaning given in subsection 2.1.4.
“Demand Registration” shall have the
meaning given in subsection 2.2.1.
“Demand Requesting Holder” shall
have the meaning given in subsection 2.2.1.
“Demanding Holders” shall have the meaning
given in subsection 2.2.1.
“Effectiveness Deadline” shall
have the meaning given in subsection 2.1.1.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Form S-1”
means a Registration Statement on Form S-1.
“Form S-3” means a Registration Statement on Form S-3.
“Holders”
shall have the meaning given in the Preamble.
“Lock-up
Period” shall have the meaning given in subsection 5.1.
“Maximum Number of Securities” shall
have the meaning given in subsection 2.2.4.
“Minimum Amount” shall have the meaning
given in subsection 2.1.4
“Misstatement”
shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement
or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus in the light of the circumstances under which
they were made not misleading.
“New
Holders” shall have the meaning given in the Recitals hereto.
“New Registration Statement” shall have
the meaning given in subsection 2.1.5.
“Original
Holders” shall have the meaning given in the Recitals hereto.
“Piggyback Registration” shall have
the meaning given in subsection 2.3.1.
“Prior Agreement” shall have the meaning
given in the Recitals hereto.
“Private Placement Warrants” shall have
the meaning given in the Recitals hereto.
“Pro Rata” shall have the meaning given in subsection 2.2.4.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable
Security”, “Registrable Securities” shall mean (a) the Private Placement Warrants (including any
shares of Common Stock issued or issuable upon the exercise of any such Private Placement Warrants), (b) any outstanding share
of Common Stock or any other equity security (including the shares of Common Stock issued or issuable upon the exercise of any other
equity security) of the Company held by a Holder as of the Closing Date and (c) any other equity security of the Company issued
or issuable with respect to any such security described in (a) or (b) above by way of a stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided, however,
that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (A) a
Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such
securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (B) such
securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require
registration under the Securities Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be
sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated
thereafter by the Commission) (but with no volume or other restrictions or limitations); or (E) such securities have been sold
to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.
“Registration”
shall mean a registration effected by preparing and filing a Registration Statement in compliance with the requirements of the Securities
Act, and the applicable rules and regulations promulgated thereunder, and such Registration Statement becoming effective.
“Registration
Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all
registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.)
and any securities exchange on which the Common Stock is then listed;
(B) fees
and expenses of compliance with securities or blue sky laws (including reasonable and documented fees and disbursements of counsel for
the Underwriters in connection with blue sky qualifications of Registrable Securities);
(C) printing, messenger, telephone and delivery expenses;
(D) reasonable and documented fees and disbursements of counsel for the Company;
(E) reasonable
and documented fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection
with such Registration; and
(F) reasonable
and documented fees and expenses of one (1) legal counsel selected by (i) the majority-in-interest of the Demanding Holders
initiating a Demand Registration to be registered for offer and sale in the applicable Registration, (ii) the majority-in-interest
of the Demanding Holders initiating a Shelf Underwritten Offering, or (iii) the majority-in-interest of participating Holders under
Section 2.1 if the Registration was initiated by the Company for its own account or that of a Company stockholder other than
pursuant to rights under this Agreement, in each case to be registered for offer and sale in the applicable Registration.
“Registration
Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to
such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Resale
Shelf Registration Statement” shall have the meaning given in subsection 2.1.1.
“Securities Act” shall mean the Securities
Act of 1933, as amended from time to time. “SEC Guidance” shall have the meaning given in subsection 2.1.5.
“Shelf Takedown Notice” shall
have the meaning given in subsection 2.1.4.
“Shelf Underwritten Offering”
shall have the meaning given in subsection 2.1.4.
“SUO Requesting Holder” shall
have the meaning given in subsection 2.1.4.
“Transfer”
means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or
involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment,
pledge, encumbrance, hypothecation or similar disposition of, any interest owned by a person or any interest (including a beneficial interest)
in, or the ownership, control or possession of, any interest owned by a person.
“Underwriter”
shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such
dealer’s market-making activities.
“Underwritten
Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are
sold to an Underwriter in a firm commitment underwriting for distribution to the public.
ARTICLE II
REGISTRATION
Section 2.1 Resale
Shelf Registration Rights
2.1.1 Registration
Statement Covering Resale of Registrable Securities. The Company shall prepare and file or cause to be prepared and filed with
the Commission, no later than forty-five (45) days following the Closing Date, a Registration Statement to permit the public resale
of all the Registrable Securities held by the Holders from time to time as permitted by Rule 415 of the Securities Act or any
successor thereto on the terms and conditions specified in this subsection 2.1.1 (the “Resale Shelf Registration
Statement”). The Resale Shelf Registration Statement shall be on Form S-1 (or such other form of registration
statement as is then available to permit Registration of such Registrable Securities for resale). The Company shall use reasonable
best efforts to cause the Resale Shelf Registration Statement to be declared effective as soon as possible after filing, but in no
event later than sixty (60) days following the filing deadline (the “Effectiveness Deadline”); provided, that the
Effectiveness Deadline shall be extended to ninety (90) days after the filing deadline if the Registration Statement is reviewed by,
and receives comments from, the Commission. Once effective, the Company shall use reasonable best efforts to cause the Resale Shelf
Registration Statement to remain effective and to be supplemented and amended to the extent necessary to ensure that such
Registration Statement is available or, if not available, to ensure that another Registration Statement is available, under the
Securities Act at all times until all Registrable Securities have been disposed of in accordance with the intended method(s) of
distribution set forth in such Registration Statement or have ceased to be Registrable Securities. The Registration Statement filed
with the Commission pursuant to this subsection 2.1.1 shall contain a prospectus in such form as to permit any Holder to sell
such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the
Commission then in effect) at any time beginning on the effective date for such Registration Statement (subject to lock-up
restrictions provided in Section 5.1 of this Agreement), and shall provide that such Registrable Securities may be sold
pursuant to any method or combination of methods legally available to, and requested by, Holders. The Company shall use reasonable
best efforts to convert the Resale Shelf Registration Statement on Form S-1 to a Resale Shelf Registration Statement on
Form S-3 as promptly as practicable after the Company is eligible to use a Resale Shelf Registration Statement on Form S-3
and have the Resale Shelf Registration Statement on Form S-3 declared effective as promptly as practicable and to cause such
Resale Shelf Registration Statement on Form S-3 to remain effective, and to be supplemented and amended to the extent necessary
to ensure that such Registration Statement is available or, if not available, to ensure that another Registration Statement is
available, under the Securities Act at all times until all Registrable Securities have been disposed of in accordance with the
intended method(s) of distribution set forth in such Registration Statement or have ceased to be Registrable Securities.
2.1.2 Notification
and Distribution of Materials. The Company shall notify the Holders in writing of the effectiveness of the Resale Shelf Registration
Statement as soon as practicable, and in any event within one (1) Business Day after the Resale Shelf Registration Statement becomes
effective, and shall furnish to them, without charge, such number of copies of the Resale Shelf Registration Statement (including any
amendments, supplements and exhibits), the Prospectus contained therein (including each preliminary prospectus and all related amendments
and supplements) and any documents incorporated by reference in the Resale Shelf Registration Statement or such other documents as the
Holders may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Resale Shelf
Registration Statement.
2.1.3 Amendments
and Supplements. Subject to the provisions of Section 2.1.1 above, the Company shall promptly prepare and file with the
Commission from time to time such amendments and supplements to the Resale Shelf Registration Statement and Prospectus used in connection
therewith as may be necessary to keep the Resale Shelf Registration Statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all the Registrable Securities. If any Resale Shelf Registration Statement filed pursuant to Section 2.1.1
is filed on Form S-3 and thereafter the Company becomes ineligible to use Form S-3 for secondary sales, the Company shall promptly
notify the Holders of such ineligibility and use its reasonable best efforts to file a shelf registration on an appropriate form as promptly
as practicable to replace the shelf registration statement on Form S-3 and have such replacement Resale Shelf Registration Statement
declared effective as promptly as practicable and to cause such replacement Resale Shelf Registration Statement to remain effective, and
to be supplemented and amended to the extent necessary to ensure that such Resale Shelf Registration Statement is available or, if not
available, that another Resale Shelf Registration Statement is available, for the resale of all the Registrable Securities held by the
Holders until all such Registrable Securities have ceased to be Registrable Securities; provided, however, that at any time the Company
once again becomes eligible to use Form S-3, the Company shall cause such replacement Resale Shelf Registration Statement to be amended,
or shall file a new replacement Resale Shelf Registration Statement, such that the Resale Shelf Registration Statement is once again on
Form S-3.
2.1.4 At
any time and from time to time following the effectiveness of the shelf registration statement required by subsection 2.1.1
or subsection 2.1.2, any Holder may request to sell all or a portion of their Registrable Securities in an underwritten
offering that is registered pursuant to such shelf registration statement (a “Shelf Underwritten Offering”);
provided that such Holder(s) reasonably expects to sell Registrable Securities yielding aggregate gross proceeds in excess of
$5,000,000 from such Shelf Underwritten Offering (such amount of Registrable Securities, as applicable, the “Minimum
Amount”). All requests for a Shelf Underwritten Offering shall be made by giving written notice to the Company (the
“Shelf Takedown Notice”). Each Shelf Takedown Notice shall specify the approximate number of Registrable
Securities proposed to be sold in the Shelf Underwritten Offering and the expected price range (net of underwriting discounts and
commissions) of such Shelf Underwritten Offering. Within two (2) business days after receipt of any Shelf Takedown Notice, the
Company shall give written notice of such requested Shelf Underwritten Offering to all other Holders of Registrable Securities (the
“Company Shelf Takedown Notice”) and each Holder of Registrable Securities who thereafter wishes to include all
or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Shelf Underwritten Offering (each such
Holder that includes all or a portion of such Holder’s Registrable Securities in such Shelf Underwritten Offering, a
“SUO Requesting Holder”) shall so notify the Company of its intent to participate in such Shelf Underwritten
Offering, in writing, within three (3) business days after the receipt by such Holder of the Company Shelf Takedown Notice.
Upon receipt by the Company of any such written notification from a SUO Requesting Holder(s) to the Company, subject to the
provisions of subsection 2.2.4, the Company shall include in such Shelf Underwritten Offering all Registrable Securities of
such SUO Requesting Holder(s). The Company shall, together with all participating Holders of Registrable Securities of the Company
proposing (and permitted) to distribute their securities through such Shelf Underwritten Offering, enter into an underwriting
agreement in customary form for such Shelf Underwritten Offering with the managing Underwriter or Underwriters selected by the
majority-in-interest of the participating Holders after consultation with the Company and shall take all such other reasonable
actions as are reasonably requested by the managing Underwriter or Underwriters in order to facilitate the disposition of such
Registrable Securities. In connection with any Shelf Underwritten Offering contemplated by this subsection 2.1.4, subject to Section 3.3
and Article IV, the underwriting agreement into which each Holder and the Company shall enter shall contain
representations, covenants, indemnities and other rights and obligations in customary form for such Shelf Underwritten Offering by
the Company.
2.1.5 Notwithstanding
the registration obligations set forth in this Section 2.1, in the event the Commission informs the Company that all of the
Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a
single Registration Statement, the Company agrees to promptly (i) inform each of the Holders thereof and use its reasonable best
efforts to file amendments to the Resale Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Resale
Shelf Registration Statement and file a new registration statement (a “New Registration Statement”) on Form S-1
(or such other form of registration statement as is then available to permit Registration of such Registrable Securities for resale);
provided, however, that prior to filing such amendment or New Registration Statement, the Company shall use its reasonable best efforts
to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly- available written
or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”). Notwithstanding
any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to
be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used its reasonable
best efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise
directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration
Statement will be reduced on a pro rata basis based on the total number of Registrable Securities held by the Holders, subject to a determination
by the Commission that certain Holders must be reduced first based on the number of Registrable Securities held by such Holders. In the
event the Company amends the Resale Shelf Registration Statement or files a New Registration Statement, as the case may be, under clause
(i) or (ii) above, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by Commission
or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1
or such other form available to register for resale those Registrable Securities that were not registered for resale on the Resale Shelf
Registration Statement, as amended, or the New Registration Statement.
2.1.6 Registrations
effected pursuant to this Section 2.1 shall not be counted as Demand Registrations effected pursuant to Section 2.2.
Section 2.2 Demand
Registration.
2.2.1 Request
for Registration. Subject to the provisions of subsection 2.2.4 and Section 2.4 hereof and provided that the
Company does not have an effective Registration Statement pursuant to subsection 2.1.1 or subsection 2.1.2 covering
Registrable Securities, at any time and from time to time on or after the Effective Time, Holders holding at least $5,000,000 of the
then-outstanding number of Registrable Securities held by all Holders (such Holders, the “Demanding Holders”),
may make a written demand for Registration of all or part of their Registrable Securities on Form S-1 (or such other form of
registration statement as is then available to permit Registration of such Registrable Securities for resale by such Demanding
Holders), which written demand shall describe the amount and type of securities to be included in such Registration and the intended
method(s) of distribution thereof (such written demand, a “Demand Registration”). The Company shall, within
ten (10) days of the Company’s receipt of the Demand Registration, notify, in writing, all other Holders of Registrable
Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such
Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a
portion of such Holder’s Registrable Securities in such Registration, a “Demand Requesting Holder”) shall
so notify the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. Upon
receipt by the Company of any such written notification from a Demand Requesting Holder(s) to the Company, such Demand
Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand
Registration and the Company shall (i) file a Registration Statement in respect of all Registrable Securities requested by the
Demanding Holders and Demand Requesting Holder(s) pursuant to such Demand Registration, not more than forty five (45) days
immediately after the Company’s receipt of the Demand Registration, and (ii) effect the Registration thereunder as soon
thereafter as practicable. Under no circumstances shall the Company be obligated to effect more than an aggregate of five
(5) Demand Registrations under this subsection 2.2.1.
2.2.2 Effective
Registration. Notwithstanding the provisions of subsection 2.2.1 above or any other part of this Agreement, a Registration
pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement filed with the
Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission and (ii) the
Company has complied with all of its obligations under this Agreement with respect thereto; provided that if, after such Registration
Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently
interfered with by any stop order or injunction of the Commission, federal or state court or any other governmental agency, the Registration
Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (i) such stop
order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority- in-interest of the Demanding Holders initiating
such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing,
but in no event later than five (5) days after such stop order or injunction is removed, rescinded or otherwise terminated, of such
election; provided, further, that the Company shall not be obligated or required to file another Registration Statement until the Registration
Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently
terminated.
2.2.3 Underwritten
Offering. Subject to the provisions of subsection 2.2.4 and Section 2.4 hereof, if a majority-in-interest of the
Demanding Holders so advise the Company as part of their Demand Registration that the offering of the Registrable Securities pursuant
to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder or Demand Requesting
Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation
in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent
provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection
2.2.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering
by the majority-in-interest of the Demanding Holders initiating the Demand Registration.
2.2.4 Reduction
of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand
Registration, in good faith, advises the Company, the Demanding Holders and the Demand Requesting Holders (if any) in writing that
the dollar amount or number of Registrable Securities that the Demanding Holders and the Demand Requesting Holders (if any) desire
to sell, taken together with all other Common Stock or other equity securities that the Company desires to sell and the Common
Stock, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights
held by any other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can
be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method,
or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the
“Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows:
(i) first, the Registrable Securities of the Demanding Holders and the Demand Requesting Holders (if any) (pro rata based on
the respective number of Registrable Securities that each Demanding Holder and Demand Requesting Holder (if any) has requested be
included in such Underwritten Registration and the aggregate number of Registrable Securities that the Demanding Holders and Demand
Requesting Holders have requested be included in such Underwritten Registration (such proportion is referred to herein as
“Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent
that the Maximum Number of Securities has not been reached under the foregoing clause (i), Common Stock or other equity securities
that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the
extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), Common Stock or
other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to
separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of
Securities.
2.2.5 Demand
Registration Withdrawal. A majority-in-interest of the combined Demanding Holders and Demand Requesting Holders (if any), pursuant
to a Registration under subsection 2.2.1 shall have the right to withdraw from a Registration pursuant to such Demand Registration
for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of their intention
to withdraw from such Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to
the Registration of their Registrable Securities pursuant to such Demand Registration. If a majority-in-interest of the Demanding Holders
and Demand Requesting Holders (if any), withdraws from a proposed offering pursuant to this Section 2.2.5, then such registration
shall not count as a Demand Registration provided for in Section 2.2. Notwithstanding anything to the contrary in this Agreement,
the Company shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration
prior to its withdrawal under this subsection 2.2.5.
Section 2.3 Piggyback
Registration.
2.3.1 Piggyback
Rights. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity
securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own
account or for the account of stockholders of the Company (other than Holders of Registrable Securities, which offerings are covered
by Section 2.1 or Section 2.2), other than a Registration Statement (i) filed in connection with any
employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s
existing stockholders, (iii) for an offering of debt that is convertible into equity securities of the Company, (iv) for a
dividend reinvestment plan, or (v) filed in connection with any business combination or acquisition involving the Company, then
the Company shall give written notice of such proposed filing to all of the Holders of Registrable Securities as soon as practicable
but not less than ten (10) days before the anticipated filing date of such Registration Statement, which notice shall
(A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution,
and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the
Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may
request in writing within five (5) days after receipt of such written notice (such Registration a “Piggyback
Registration”). The Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback
Registration and shall use its reasonable best efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten
Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.3.1 to be included in a
Piggyback Registration on the same terms and conditions as any similar securities of the Company included in such Registration and
to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under
this subsection 2.3.1 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for
such Underwritten Offering by the Company.
2.3.2 Reduction
of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration,
in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that
the dollar amount or number of shares of Common Stock or other equity securities that the Company desires to sell, taken together with
(i) the shares of Common Stock or other equity securities, if any, as to which Registration has been demanded pursuant to separate
written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (ii) the Registrable
Securities as to which registration has been requested pursuant to this Section 2.3, and (iii) the shares of Common Stock
or other equity securities, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration
rights of other stockholders of the Company, exceeds the Maximum Number of Securities, then:
| (i) | If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first,
Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities;
(B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable
Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.3.1 hereof, Pro
Rata, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number
of Securities has not been reached under the foregoing clauses (A) and (B), Common Stock, if any, as to which Registration has been
requested pursuant to written contractual piggy-back registration rights of other stockholders of the Company, which can be sold without
exceeding the Maximum Number of Securities; and |
| (ii) | If the Registration is pursuant to a request by persons or entities other than the Holders of
Registrable Securities, then the Company shall include in any such Registration (A) first, Common Stock or other equity
securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold
without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not
been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their
Registrable Securities pursuant to subsection 2.3.1, Pro Rata, which can be sold without exceeding the Maximum Number of
Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses
(A) and (B), Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number
of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses
(A), (B) and (C), Common Stock or other equity securities for the account of other persons or entities that the Company is obligated
to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the
Maximum Number of Securities. |
2.3.3 Piggyback
Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any
or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention
to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect
to such Piggyback Registration. The Company (whether on its own good faith determination or as the result of a request for withdrawal
by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection
with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary
in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration
prior to its withdrawal under this subsection 2.3.3.
2.3.4 Unlimited
Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.3 hereof shall
not be counted as a Registration pursuant to a Demand Registration effected under Section 2.2 hereof.
Section 2.4 Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to the Company’s
good faith estimate of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of,
the Company initiated Registration and provided that the Company has delivered written notice to the Holders prior to receipt of a Demand
Registration pursuant to subsection 2.2.1 and it continues to actively employ, in good faith, all reasonable efforts to cause the
applicable Registration Statement to become effective; (B) the Holders have requested an Underwritten Registration and the Company
and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or (C) in the good faith judgment
of the Board such Registration would be materially detrimental to the Company and the Board concludes as a result that it is essential
to defer the filing of such Registration Statement at such time, then in each case the Company shall furnish to such Holders a certificate
signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be materially detrimental to the Company
for such Registration Statement to be filed in the near future and that it is therefore essential to defer the filing of such Registration
Statement. In such event, the Company shall have the right to defer such filing for a period of not more than thirty (30) days; provided,
however, that the Company shall not defer its obligation in this manner more than once in any 12-month period.
ARTICLE III
COMPANY PROCEDURES
Section 3.1 General Procedures. If at any time on or after the Effective Time the Company is required to effect the Registration of Registrable
Securities, the Company shall use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities
in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare
and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable
Securities covered by such Registration Statement have been sold;
3.1.2 prepare
and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the
Prospectus, as may be reasonably requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules,
regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations
thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold
in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior
to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters,
if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all
exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each
preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration
or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such
Holders;
3.1.4 prior
to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities
covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States
as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may
request and (ii) take such action reasonably necessary to cause such Registrable Securities covered by the Registration Statement
to be registered with or approved by such other governmental authorities as may be reasonably necessary, following opinion of Company
legal counsel, by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably
necessary or advisable, following opinion of Company legal counsel, to enable the Holders of Registrable Securities included in such Registration
Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the
Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify
or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then
otherwise so subject;
3.1.5 cause
all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued
by the Company are then listed;
3.1.6 provide
a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of
such Registration Statement;
3.1.7 advise
each Holder of such Registrable Securities covered by such Registration Statement, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation
or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order
or to obtain its withdrawal if such stop order should be issued;
3.1.8 advise
each Holder of Registrable Securities covered by such Registration Statement, promptly after the Company receives notice thereof, of
the time when such registration statement has been declared effective or a supplement to any Prospectus forming a part of such
registration statement has been filed;
3.1.9 at
least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration
Statement or Prospectus, furnish a copy thereof to each Holder of such Registrable Securities or its counsel;
3.1.10 notify
the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act,
of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes
a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.11 permit
a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate,
at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors
and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection
with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement,
in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.12 obtain
a “cold comfort” letter from the Company’s independent registered public accountants (and the independent accountant
of any other entity whose financial statements are included in (or incorporated by reference in) a Registration Statement) in the event
of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort”
letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating
Holders and such managing Underwriter;
3.1.13 on
the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel
representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any,
and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given
as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and
negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders;
3.1.14 in
the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary
form, with the managing Underwriter of such offering;
3.1.15 make
available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12)
months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement
which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor
rule promulgated thereafter by the Commission);
3.1.16 if
the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable
best efforts to make available senior executives of the Company to participate in customary “road show” presentations that
may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.17 otherwise,
in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection
with such Registration.
Section 3.2
Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by
the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’
commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration
Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
Section 3.3 Requirements for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity
securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such
person’s securities on the basis provided in any underwriting arrangements approved by the Company and (ii) completes and executes
all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents
as may be reasonably required under the terms of such underwriting arrangements.
Section 3.4 Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus
contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has
received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants
to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised
in writing by the Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration
Statement in respect of any Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion
in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control,
the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend
use of, such Registration Statement for the shortest period of time, but in no event more than thirty (30) days, determined in good faith
by the Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holders
agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration
in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration
of any period during which it exercised its rights under this Section 3.4.
Section 3.5
Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be
a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company after the Closing Date pursuant to Sections 13(a) or 15(d) of
the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings upon request. The Company further
covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Securities held by such Holder without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by
the Commission), including providing any legal opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written
certification of a duly authorized officer as to whether it has complied with such requirements.
Section 3.6 Limitations on Registration Rights. The Company shall not hereafter enter into any agreement with respect to its
securities which is inconsistent with or violates the rights granted to the Holders of Registrable Securities in this Agreement and
in the event of any conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall
prevail.
ARTICLE IV
INDEMNIFICATION AND
CONTRIBUTION
Section 4.1 Indemnification
4.1.1 The
Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and agents
and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and
expenses (including reasonable and documented attorneys’ fees) caused by any untrue or alleged untrue statement of material fact
contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except
insofar as the same are caused by or contained in any information furnished in writing to the Company by such Holder expressly for use
therein.
4.1.2 In
connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to
the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration
Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each
person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses
(including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the
Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material
fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein; provided,
however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities,
and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by
such Holder from the sale of Registrable Securities pursuant to such Registration Statement.
4.1.3 Any
person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right
to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless
in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for
any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees
and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in
the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party,
consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money
(and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
4.1.4 The
indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer
of Registrable Securities. The Company and each Holder of Registrable Securities participating in an offering also agree to make such
provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such
Holder’s indemnification is unavailable for any reason.
4.1.5 If
the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party,
in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party
and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent,
knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability
of any Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering
giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above
shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any
reasonable and documented legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation
or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5
were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations
referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such
fraudulent misrepresentation.
ARTICLE V LOCK-UP
Section 5.1
Lock-Up. Except as permitted by Section 5.2, until the earliest of: (i) the date that is six (6) months
from the date of this Agreement, (ii) the last consecutive trading day where the sale price of the Common Stock equals or exceeds
$12.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within
any 30-trading day period commencing after the Closing Date commencing at least 150 days after the date of this Agreement, or (iii) such
date on which the Company completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction which results
in all of the stockholders of the Company having the right to exchange their shares of Common Stock for cash, securities or other property
(the “Lock-up Period”), each Holder shall not Transfer any shares of Common Stock beneficially owned or owned of record
by such Holder.
Section 5.2 Exceptions
The provisions of Section 5.1 shall not apply to:
5.2.1 transactions relating
to shares of Common Stock acquired in open market transactions;
5.2.2 Transfers
of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as a bona fide gift;
5.2.3 Transfers
of shares of Common Stock to a trust, or other entity formed for estate planning purposes for the primary benefit of the spouse, domestic
partner, parent, sibling, child or grandchild of the Holder or any other person with whom the Holder has a relationship by blood, marriage
or adoption not more remote than first cousin;
5.2.4 Transfers by will or intestate succession upon the death of the Holder;
5.2.5 the
Transfer of shares of Common Stock pursuant to a qualified domestic order or in connection with a divorce settlement;
5.2.6 if
the Holder is a corporation, partnership (whether general, limited or otherwise), limited liability company, trust or other business entity,
(i) Transfers to another corporation, partnership, limited liability company, trust or other business entity that controls, is controlled
by or is under common control or management with the undersigned, (ii) distributions of shares of Common Stock to partners, limited
liability company members or stockholders of the undersigned;
5.2.7 Transfers to the Company’s officers, directors or their affiliates;
5.2.8 pledges
of shares of Common Stock or other Registrable Securities as security or collateral in connection with any borrowing or the incurrence
of any indebtedness by any Holder (provided such borrowing or incurrence of indebtedness is secured by a portfolio of assets or equity
interests issued by multiple issuers);
5.2.9 pursuant
to a bona fide third-party tender offer, merger, stock sale, recapitalization, consolidation or other transaction involving a Change in
Control of the Company, provided that in the event that such tender offer, merger, recapitalization, consolidation or other such transaction
is not completed, the Common Stock subject to this Agreement shall remain subject to this Agreement; and
5.2.10 the
establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not
provide for the transfer of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock during
the Lock-up Period; provided, that in the
case of any Transfer or distribution pursuant to Sections 5.2.2 through 5.2.7, each donee, distributee or other
transferee shall agree in writing, in form and substance reasonably satisfactory to the Company, to be bound by the provisions of
this Agreement.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1
Entire Agreement. This Agreement (including Schedule A hereto) constitutes the entire understanding and agreement between
the parties as to the matters covered herein and supersedes and replaces any prior understanding, agreement or statement of intent, in
each case, written or oral, of any and every nature with respect thereto.
Section 6.2
Prior Agreement. The Company and the Original Holders, as parties to the Prior Agreement, hereby agree that the Prior Agreement
is terminated with respect to such parties as of the Closing Date and is replaced in its entirety by this Agreement and none of the Original
Holders shall have any further rights thereunder.
Section 6.3 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be
in writing and shall be deemed properly delivered, given and received (a) upon receipt when delivered by hand, (b) upon transmission,
if sent by facsimile or electronic transmission (in each case with receipt verified by electronic confirmation), or (c) one (1) Business
Day after being sent by courier or express delivery service, specifying next day delivery, with proof of receipt. The addresses, email
addresses and facsimile numbers for such notices and communications are those set forth on the signature pages hereof, or such other
address, email address or facsimile numbers as may be designated in writing hereafter, in the same manner, by any such person.
Section 6.4 Assignment; No Third-Party Beneficiaries. This Agreement and the rights, duties and obligations of the Company hereunder may
not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the Holders
of Registrable Securities hereunder may be freely assigned or delegated by such Holder of Registrable Securities in conjunction with and
to the extent of any transfer of Registrable Securities by any such Holder. This Agreement and the provisions hereof shall be binding
upon and shall inure to the benefit of each of the parties and the permitted assigns of the applicable Holder of Registrable Securities
or of any assignee of the applicable Holder of Registrable Securities. This Agreement is not intended to confer any rights or benefits
on any persons that are not party hereto other than as expressly set forth in Article IV and this Section 6.4.
No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the
Company unless and until the Company shall have received (i) written notice of such assignment and (ii) the written agreement
of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may
be accomplished by an addendum or certificate of joinder to this Agreement).
Section 6.5 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same counterpart and such counterparts may be delivered by the parties
hereto via facsimile or electronic transmission.
Section 6.6 Amendment; Waiver. This Agreement may be amended or modified, and any provision hereof may be waived, in whole or in part,
at any time pursuant to an agreement in writing executed by the Company and Holders holding a majority of the Registrable Securities at
such time; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder,
solely in his, her or its capacity as a Holder of the shares of capital stock of the Company, in a manner that is materially different
from the other Holders (in such capacity) shall require the consent of the Holder so affected. Any failure by any party at any time to
enforce any of the provisions of this Agreement shall not be construed a waiver of such provision or any other provisions hereof.
Section 6.7 Severability. In the event that any provision of this Agreement or the application thereof becomes or is declared by a court
of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect
and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto.
Section 6.8 Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts executed in and to be performed in that State. All legal actions and proceedings arising out of or
relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction
is not then available in the Delaware Chancery Court, then any such legal action may be brought in any federal court located in the
State of Delaware or any other Delaware state court. The parties hereto hereby (a) irrevocably submit to the exclusive
jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any action
arising out of or relating to this Agreement brought by any party hereto, and (b) agree not to commence any action relating
thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any
judgment, decree or award rendered by any such court in Delaware as described herein. Each of the parties further agrees that notice
as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is
insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a
defense, counterclaim or otherwise, in any action arising out of or relating to this Agreement or the transactions contemplated
hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for
any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise) and (c) that (i) the action in any such court is brought in an inconvenient
forum, (ii) the venue of such action is improper or (iii) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts.
Section 6.9
Specific Performance. Each party acknowledges and agrees that the other parties hereto would be irreparably harmed and would
not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed by such first party in
accordance with their specific terms or were otherwise breached by such first party. Accordingly, each party agrees that the other parties
hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, this being in addition to any other remedy to which such parties are entitled at law or in equity.
Section 6.10
Term. This Agreement shall terminate (a) with respect to any Holder on the date on which such Holder ceases to hold Registrable
Securities and (b) otherwise upon the date as of which all of the Registrable Securities have been sold pursuant to a Registration
Statement (but in each case in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act
and Rule 174 thereunder (or any successor rule promulgated thereafter by the Commission)). The provisions of Article IV
shall survive any termination.
(Next Page is Signature Page)
IN WITNESS WHEREOF, each of the parties
has executed this Agreement as of the date first written above.
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[Signature Page to Registration Rights
and Lock-Up Agreement]
IN WITNESS WHEREOF, each of the undersigned
has executed this Agreement as of the date first written above.
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[Signature Page to Registration Rights
and Lock-Up Agreement]
Schedule A
Original Holders
Name of Holder |
Number of Shares of Common Stock |
Number of Private Placement Units |
Maquia Investments North America, LLC |
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Kingswood Capital Markets, Division of Benchmark Investments, Inc. |
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New Holders
Name of Holder |
Number of Shares of Common Stock |
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EXHIBIT B-1
SPAC Second Amended and Restated Certificate
of Incorporation
[Attached.]
Final Form
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MAQUIA CAPITAL ACQUISITION CORPORATION
The present name
of the corporation is “Maquia Capital Acquisition Corporation.” The corporation was incorporated under the name “Maquia
Acquisition Corporation” by the filing of its original certificate of incorporation with the Secretary of State of the State of
Delaware on December 10, 2020. This Second Amended and Restated Certificate of Incorporation of the corporation, which both restates
and further amends the provisions of the corporation’s certificate of incorporation, was duly adopted in accordance with the provisions
of Sections 242 and 245 of the General Corporation Law of the State of Delaware. The corporation’s certificate of incorporation
is hereby amended and restated to read in its entirety as follows:
FIRST. The name of the corporation is Immersed Inc. (the
“Corporation”).
SECOND. The address
of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, City of Wilmington, County of New Castle,
State of Delaware 19808. The name of its registered agent at such address is Corporation Services Company.
THIRD. The
purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (as the same exists or may hereafter be amended, the “General Corporation Law”).
FOURTH. Capital Stock.
1. Authorized
Shares of Capital Stock. The total number of shares of all classes of capital stock that the Corporation shall have authority to issue
is [●] shares, divided into two classes as follows: (i) [·] shares, par value $0.0001 per share, of common
stock (“Common Stock”); and (ii) [·] shares, par value $0.0001 per share, of preferred stock (“Preferred
Stock”).
2. Common
Stock. The powers (including voting powers), if any, and the preferences and relative, participating, optional, special or other rights,
if any, and the qualifications, limitations or restrictions, if any, of Common Stock are as follows:
(a) Dividends.
Subject to applicable law and the rights, if any, of the holders of any other class or series of capital stock of the Corporation as provided
for or fixed by or pursuant to the provisions of the certificate of incorporation of the Corporation (including any certificate filed
with the Secretary of State of the State of Delaware establishing a series of Preferred Stock) (as the same may be amended or amended
and restated, the “Certificate of Incorporation”) and then outstanding, dividends may be declared and paid on Common
Stock at such times and in such amounts as the Board of Directors of the Corporation (the “Board of Directors”) in
its discretion shall determine.
(b) Voting.
Except as otherwise provided by applicable law or by or pursuant to the provisions of the Certificate of Incorporation, each holder of
one or more outstanding shares of Common Stock, as such, shall be entitled to one (1) vote for each outstanding share of Common Stock
held of record by such holder on all matters on which stockholders are generally entitled to vote.
(c) Liquidation,
Dissolution or Winding Up. Subject to applicable law and the rights, if any, of the holders of any other class or series of
capital stock of the Corporation as rovided for or fixed by or pursuant to the provisions of the Certificate of Incorporation and
then outstanding, in the event of any liquidation, dissolution or winding up of the Corporation, the holders of outstanding shares
of Common Stock shall be entitled to receive the assets of the Corporation available for distribution to its stockholders, ratably
in proportion to the number of outstanding shares of Common Stock held by them. None of a merger or consolidation of the Corporation
with or into any other corporation or other entity, or a sale, lease or exchange of all or substantially all of the
Corporation’s property and assets which, in each case, shall not in fact result in the liquidation, dissolution or winding up
of the Corporation and the distribution of its assets, shall not be deemed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of this Section 2(c) of this Article FOURTH.
3. Preferred
Stock. The Board of Directors is hereby expressly authorized, by resolution or resolutions thereof, to provide from time to time out
of the unissued shares of Preferred Stock for one or more series of Preferred Stock, and, with respect to each such series, to fix the
number of shares constituting such series and the designation of such series, the powers (including voting powers), if any, of the shares
of such series and the preferences and relative, participating, optional, special or other rights, if any, and the qualifications, limitations
or restrictions, if any, of the shares of such series. The designations, powers (including voting powers), preferences and relative, participating,
optional, special and other rights, if any, of each series of Preferred Stock and the qualifications, limitations or restrictions, if
any, thereof, may differ from those of any and all other series of Preferred Stock at any time outstanding. Except as may otherwise be
provided by applicable law or the rules or regulations of any stock exchange applicable to the Corporation or by or pursuant to the
provisions of the Certificate of Incorporation, no holder of one or more outstanding shares of any series of Preferred Stock then outstanding,
as such, shall be entitled to any voting powers in respect thereof. The number of authorized shares of Preferred Stock may be increased
or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting
power of all of the then outstanding shares of capital stock of the Corporation entitled to vote irrespective of Section 242(b)(2) of
the General Corporation Law, without the separate vote of the holders of the Preferred Stock as a class.
FIFTH. Board of Directors.
1. Management.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
2. Classified
Board. Except for those directors, if any, elected solely and exclusively by the holders of any class or series of capital stock
of the Corporation as provided for or fixed by or pursuant to the Certificate of Incorporation and then outstanding (collectively,
the “Class/Series Directors” and each, a “Class/Series Director”), the Board of
Directors shall be divided into three (3) classes, as nearly equal in number as possible, designated as Class I,
Class II and Class III. The Class I directors shall initially serve until the first annual meeting of stockholders
following the effectiveness of this Second Amended and Restated Certificate of Incorporation of the Corporation in accordance with
the General Corporation Law (the “Classification Effective Time”); the Class II directors shall initially
serve until the second annual meeting of stockholders following the Classification Effective Time; and the Class III directors
shall initially serve until the third annual meeting of stockholders following the Classification Effective Time. Commencing with
the first annual meeting of stockholders following the Classification Effective Time, directors of each class the term of which
shall then expire shall be elected to hold office for a three (3) year term and until the election and qualification of their
respective successors in office, subject to such directors’ respective earlier death, resignation, disqualification or
removal. From and after the Classification Effective Time, in case of any increase or decrease, from time to time, in the number of
directors (other than in the number of Class/Series Directors), the number of directors in each class shall be apportioned by
resolution of the Board of Directors as nearly equal as possible. The Board of Directors is hereby authorized to assign members of
the Board of Directors already in office to such classes at the time such classification becomes effective. For the avoidance of
doubt, the classification of the Board of Directors into three (3) classes shall become effective upon the Classification
Effective Time.
3. Removal
of Directors. Except for any Class/Series Directors, for so long as the Board of Directors is classified as provided in Section 2
of this Article FIFTH, any director or the entire Board of Directors may be removed (a) solely and exclusively for cause
and (b) solely and exclusively by the affirmative vote of the holders of at least majority in voting power of all of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
4. Vacancies
and Newly Created Directorships. Subject to applicable law and the rights, if any, of the holders of any class or series of capital
stock of the Corporation as provided for or fixed by or pursuant to the provisions of the Certificate of Incorporation and then outstanding,
newly created directorships resulting from an increase in the authorized number of directors or any vacancies on the Board of Directors
resulting from the death, resignation, disqualification, removal or other cause, shall be filled solely and exclusively by a majority
vote of the directors then in office, although less than a quorum, or by the sole remaining director. Any director so elected shall hold
office until the expiration of the term of office of the director whom he or she has replaced and until his or her successor shall be
elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. No decrease in the number
of directors shall shorten the term of any incumbent director.
5. Automatic
Increase/Decrease in Total Authorized Number of Directors. During any period when the holders of any class or series of capital stock
of the Corporation as provided for or fixed by or pursuant to the provisions of the Certificate of Incorporation and then outstanding
have the right to elect one or more Class/Series Directors, then upon commencement of, and for the duration of, the period during
which such right continues: (a) the then otherwise total authorized number of directors of the Corporation shall automatically be
increased by such specified Class/Series Director or Class/Series Directors, and the holders of such class or series of capital
stock shall be entitled to elect such Class/Series Director or Class/Series Directors; and (b) each such Class/Series Director
shall serve until such Class/Series Director’s successor shall have been duly elected and qualified, or until such Class/Series Director’s
right to hold such office terminates by or pursuant to the provisions of the Certificate of Incorporation, whichever occurs earlier, subject
to such Class/Series Director’s earlier death, resignation, disqualification or removal. Except as otherwise provided by or
pursuant to the provisions of this Certificate of Incorporation, whenever the holders of any class or series of capital stock then outstanding
having the right to elect one or more Class/Series Directors by or pursuant to the provisions of the Certificate of Incorporation
are divested of such right by or pursuant to the provisions of this Certificate of Incorporation, the term of office of each such Class/Series Director
elected by the holders of such class or series of capital stock, or elected to fill any vacancy resulting from the death, resignation,
disqualification or removal of each such Class/Series Director, shall forthwith terminate and the total authorized number of directors
of the Corporation shall automatically be decreased by such specified number of directors.
6. No
Written Ballot. Unless and except to the extent that the bylaws of the Corporation shall so require, the election of directors of
the Corporation need not be by written ballot.
7. Amendment
of Bylaws. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of
Directors is expressly authorized to make, alter, amend and repeal the bylaws of the Corporation. In addition to any affirmative
vote required by or pursuant to the provisions of the Certificate of Incorporation, any bylaw that is to be made, altered, amended
or repealed by the stockholders of the Corporation shall receive the affirmative vote of the holders of at least majority in voting
power of all of the then outstanding shares of capital stock of the Corporation generally entitled to vote, voting together as a
single class.
8. Special
Meetings of Stockholders. Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, special
meetings of stockholders for any purpose or purposes may be called at any time, but solely and exclusively by the Chairperson of the Board
of Directors, the Chief Executive Officer or the directors entitled to cast a majority of the votes of the whole Board of Directors. Except
as provided in the foregoing sentence, special meetings of stockholders may not be called by any other person or persons. Any special
meeting of stockholders may be postponed by action of the Board of Directors or by the person calling such meeting (if other than the
Board of Directors) at any time in advance of such meeting.
SIXTH. Stockholder
Action. Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, no action that is required
or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected by consent
of stockholders in lieu of a meeting of stockholders.
SEVENTH. Exculpation.
A director or officer of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director or officer, as applicable, except to the extent such exemption from liability or limitation thereof is not
permitted under the General Corporation Law. Any amendment, modification, repeal or elimination of the foregoing sentence shall not adversely
affect any right or protection of a director or officer of the Corporation under this Article SEVENTH in respect of any act
or omission occurring prior to the time of such amendment, modification, repeal or elimination.
EIGHTH. Amendment.
The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in the
Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or
inserted, in the manner now or hereafter prescribed by applicable law; and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and pursuant to the Certificate of Incorporation are granted
subject to the rights reserved in this Article EIGHTH. In addition to any affirmative vote required by applicable law or by
or pursuant to the provisions of the Certificate of Incorporation, the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66⅔%) in voting power of all of the then outstanding shares of capital stock of the Corporation generally entitled to
vote, voting together as a single class, shall be required to amend, alter, repeal or adopt any provision inconsistent with Articles
FIFTH, SIXTH or SEVENTH or this sentence.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned
has executed and acknowledged this Second Amended and Restated Certificate of Incorporation this [●] day of [●],
2023.
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MAQUIA CAPITAL ACQUISITION CORPORATION |
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[Signature Page to Second Amended and
Restated Certificate of Incorporation]
EXHIBIT B-2
SPAC Amended and Restated Bylaws
[Attached.]
Final Form
AMENDED AND RESTATED
BYLAWS
OF
IMMERSED INC.
ARTICLE I
Meetings of Stockholders
Section 1.1
Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at
such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution or resolutions of
the Board of Directors (the “Board of Directors”) of Immersed Inc. (as such name may be changed in accordance with
applicable law, the “Corporation”) from time to time. Any annual meeting of stockholders may be postponed by action
of the Board of Directors at any time in advance of such meeting.
Section 1.2
Special Meetings. Except as otherwise provided by or pursuant to the provisions of the Corporation’s certificate of incorporation
(including any certificate filed with the Secretary of State of the State of Delaware establishing a series of preferred stock of the
Corporation) (as the same may be amended or amended and restated, the “Certificate of Incorporation”), special meetings
of stockholders for any purpose or purposes may be called at any time, but solely and exclusively by the Chairperson of the Board of Directors,
the Chief Executive Officer or by the directors entitled to cast a majority of the votes of the whole Board of Directors. Except as provided
in the foregoing sentence, special meetings of stockholders may not be called by any other person or persons. Any special meeting of stockholders
may be postponed by action of the Board of Directors or by the person calling such meeting (if other than the Board of Directors) at any
time in advance of such meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 1.3
Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall
be given that shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled
to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting,
and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by applicable
law, the Certificate of Incorporation or these Amended and Restated Bylaws (as the same may be amended or amended and restated, these
“Bylaws”), the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before
the date of the meeting to each stockholder entitled to vote at such meeting, as of the record date for determining the stockholders entitled
to notice of the meeting.
Section 1.4
Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other
place, if any, and notice need not be given of any such adjourned meeting if the time and place, if any, thereof, and the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to be present in person or by proxy and vote at such adjourned
meeting are (a) announced at the meeting at which the adjournment is taken, (b) displayed, during the time scheduled for the
meeting, on the same electronic network used to enable stockholders and proxy holders to participate in the meeting by means of remote
communication or (c) set forth in the notice of meeting given in accordance with Section 1.3 of these Bylaws. At the
adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment
is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at
the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed
for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with
Section 1.8 of these Bylaws, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote
at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
Section 1.5
Quorum. Except as otherwise provided by applicable law, by or pursuant to the Certificate of Incorporation or by these Bylaws,
at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In
the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time
in the manner provided in Section 1.4 of these Bylaws until a quorum shall be present in person or represented by proxy. Shares
of the Corporation’s capital stock shall neither be entitled to vote nor be counted for quorum purposes if such shares belong to
(a) the Corporation, (b) to another corporation, if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly by the Corporation or (c) any other entity, if a majority of the voting power
of such other entity is held, directly or indirectly by the Corporation or if such other entity is otherwise controlled, directly or indirectly,
by the Corporation; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including
but not limited to its own capital stock, held by it in a fiduciary capacity.
Section 1.6
Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board of Directors, if any, or in his or
her absence by the Chief Executive Officer, if any, or in his or her absence, by a chairperson designated by the Board of Directors, or
in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in
his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 1.7
Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of stockholders shall be entitled to one (1) vote for each share of capital stock of the Corporation
held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders
or to consent to corporate action without a meeting (where permitted by or pursuant to the provisions of the Certificate of Incorporation)
may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three
(3) years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke
any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the
proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders
for the election of directors (other than Class/Series Directors (as defined below)) at which a quorum is present, a plurality of
the votes cast shall be sufficient to elect. When a quorum is present at any meeting of stockholders, all other elections, questions or
business presented to the stockholders at such meeting shall be decided by the affirmative vote of a majority of votes cast with respect
to any such election, question or business presented to the stockholders unless the election, question or business is one which, by express
provision of the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock exchange applicable to the Corporation,
any regulation applicable to the Corporation or its securities or the laws of the State of Delaware, a vote of a different number or voting
by class or series is required, in which case, such express provision shall govern. For purposes of this Section 1.7, a “majority
of votes cast” means that the number of votes cast “for” a question or business exceeds the number of votes cast
“against” such question or business.
Section 1.8 Fixing
Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to
notice of any meeting of stockholders or any adjournment thereof, or to consent to corporate action without a meeting (where
permitted by or pursuant to the provisions of the Certificate of Incorporation), or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date:
(a) in the case of a determination of stockholders entitled to notice of any meeting of stockholders or any adjournment
thereof, shall, unless otherwise required by applicable law, not be more than sixty (60) nor less than ten (10) days before the
date of such meeting and, unless the Board of Directors determines, at the time it fixes such record date, that a later date on or
before the date of the meeting shall be the date for determining the stockholders entitled to vote at such meeting, the record date
for determining the stockholders entitled to notice of such meeting shall also be the record date for determining the stockholders
entitled to vote at such meeting; (b) in the case of a determination of stockholders entitled to consent to corporate action
without a meeting (where permitted by or pursuant to the provisions of the Certificate of Incorporation), shall not be more than ten
(10) days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (c) in
the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed:
(i) the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (ii) the record date for determining stockholders entitled to
consent to corporate action without a meeting (where permitted by or pursuant to the provisions of the Certificate of
Incorporation), when no prior action of the Board of Directors is required by applicable law, shall be the first date on which a
signed consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable
law, or, if prior action by the Board of Directors is required by applicable law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action; and (iii) the record date for determining
stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders
shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record
date for the stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for the
determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 1.8 at the
adjourned meeting.
Section 1.9
List of Stockholders Entitled to Vote. The Corporation shall prepare, no later than the tenth (10th) day before each
meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the
record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall
reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Nothing contained in
this Section 1.9 shall require the Corporation to include electronic mail addresses or other electronic contact information
on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of ten
(10) days ending on the day before the meeting date (a) on a reasonably accessible electronic network, provided that
the information required to gain access to such list is provided with the notice of meeting, or (b) during ordinary business hours,
at the principal place of business of the Corporation. Except as otherwise provided by applicable law, the stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote
in person or by proxy at any meeting of stockholders. In the event that the Corporation determines to make the list available on an electronic
network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation.
Section 1.10
Action By Consent in Lieu of Meeting. Except as otherwise permitted by or pursuant to the provisions of the Certificate of Incorporation,
no action that is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders
may be effected by consent of stockholders in lieu of a meeting of stockholders. When, as permitted by or pursuant to the provisions of
the Certificate of Incorporation, action required or permitted to be taken at any annual or special meeting of stockholders is proposed
to be taken without a meeting, without prior notice and without a vote, a consent or consents, setting forth the action so taken, shall
be signed by the holders of outstanding capital stock of the Corporation having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall
be delivered to the Corporation in accordance with applicable law. When, as permitted by or pursuant to the provisions of the Certificate
of Incorporation, action required or permitted to be taken at any annual or special meeting of stockholders is taken without a meeting,
without prior notice and without a vote, by less than unanimous consent, prompt notice of the taking of the action by consent shall be
given to those stockholders who are entitled thereto under applicable law.
Section 1.11
Inspectors of Election. The Corporation may, and shall if required by
applicable law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the
Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed
or designated is able to act at a meeting of stockholders, the individual presiding over the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an
oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The
inspector or inspectors so appointed or designated shall (a) ascertain the number of shares of capital stock of the Corporation
outstanding and the voting power of each such share, (b) determine the shares of capital stock of the Corporation represented
at the meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a
reasonable period a record of the disposition of any challenges made to any determination by the inspectors and (e) certify
their determination of the number of shares of capital stock of the Corporation represented at the meeting and such
inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be
required by applicable law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders, the
inspectors may consider such information as is permitted by applicable law. No individual who is a candidate for an office at an
election may serve as an inspector at such election.
Section 1.12
Conduct of Meetings. The date and time of the opening and the closing of the
polls for each election, question or business upon which the stockholders will vote at a meeting of stockholders shall be announced
at the meeting by the individual presiding over the meeting. The Board of Directors may adopt (by resolution or resolutions thereof)
such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of Directors, the individual presiding over any meeting of
stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such presiding individual, are appropriate for the proper conduct of the
meeting of stockholders. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the
individual presiding over the meeting of stockholders, may include, without limitation, the following: (a) the establishment of
an agenda or order of business for the meeting of stockholders; (b) rules and procedures for maintaining order at the
meeting of stockholders and the safety of those present; (c) limitations on attendance at or participation in the meeting of
stockholders to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other individuals
as the individual presiding over the meeting of stockholders shall determine; (d) restrictions on entry to the meeting of
stockholders after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or
comments by participants in the meeting of stockholders. The Board of Directors or, in addition to making any other determinations
that may be appropriate to the conduct of the meeting of stockholders, the individual presiding over any meeting of stockholders, in
each case, shall have the power and duty to determine whether any election, question or business was or was not properly made,
proposed or brought before the meeting of stockholders and therefore shall be disregarded and not be considered or transacted at the
meeting, and, if the Board of Directors or the individual presiding over the meeting, as the case may be, determines that such
election, question or business was not properly made, proposed or brought before the meeting of stockholders and shall be
disregarded and not be considered or transacted at the meeting, the individual presiding over the meeting shall declare to the
meeting that such election, question or business was not properly made, proposed or brought before the meeting and shall be
disregarded and not be considered or transacted at the meeting, and any such election, question or business shall not be considered
or transacted at the meeting. Unless and to the extent determined by the Board of Directors or the individual presiding over the
meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
Section 1.13 Notice
of Stockholder Business and Nominations.
(a) Annual
Meetings of Stockholders. (i) Nominations of one or more individuals for election to the Board of Directors by the stockholders
generally entitled to vote (which, for the avoidance of doubt, shall exclude nominations of one or more individuals for election as Class/Series Directors
(as defined below)) (each, a “Nomination,” and more than one, “Nominations”) and the proposal of
any question or business other than a Nomination or Nominations to be considered by the stockholders generally entitled to vote (which,
for the avoidance of doubt, shall exclude any question or business other than a Nomination or Nominations required by or pursuant to the
provisions of the Certificate of Incorporation to be voted on solely and exclusively by the holders of any class (voting separately as
a class) or series (voting separately as a series) of capital stock of the Corporation then outstanding) (collectively, “Business”)
may be made at an annual meeting of stockholders only (A) pursuant to the Corporation’s notice of meeting (or any supplement
thereto); provided, however, that reference in the Corporation’s notice of meeting to the election of directors or
the election of members of the Board of Directors shall not include or be deemed to include a Nomination or Nominations, (B) by or
at the direction of the Board of Directors or (C) by any stockholder of the Corporation who was a stockholder of record of the Corporation
at the time the notice provided for in this Section 1.13 is delivered to the Secretary, who is entitled to vote at the meeting
and who complies with the procedures set forth in this Section 1.13.
(ii) For
Nominations or Business to be properly brought before an annual meeting of stockholders by a stockholder pursuant to Section 1.13(a)(i)(C) of
these Bylaws, the stockholder must have given timely notice thereof in writing to the Secretary and any proposed Business must
constitute a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor
earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the
preceding year’s annual meeting of stockholders; provided, however, that in the event that the date of the
annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the
stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to
such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such
annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is
first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of an annual meeting of
stockholders commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described
above. Such stockholder’s notice shall set forth: (A) as to each Nomination to be made by such stockholder, (1) all
information relating to the individual subject to such Nomination that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Regulation
14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), without regard to the application
of the Exchange Act to either the Nomination or the Corporation, (2) such individual’s written consent to being named in
any proxy statement as a nominee and to serving as director if elected, (3) a description of any direct or indirect
compensation or benefit (including, without limitation, indemnification and/or advancement rights) to which the individual subject
to such Nomination may be entitled under any agreement, arrangement or understanding with any person other than the Corporation
(including, without limitation, the amount of any such monetary compensation) in connection with such individual’s nomination
or service as a director of the Corporation and (4) a description of any other material relationship or relationships between
or among the individual subject to such Nomination and/or such individual’s affiliates and associates, on the one hand, and
the stockholder giving the notice and the beneficial owner, if any, on whose behalf the Nomination or Nominations is/are made and/or
such stockholder’s or beneficial owner’s respective affiliates and associates, or others acting in concert with such
stockholder or beneficial owner or their respective affiliates and associates, on the other hand, including, without limitation, all
information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such stockholder, beneficial owner,
affiliate, associate or other person were the “registrant” for purposes of such rule and the individual subject to
such Nomination was a director or officer of such registrant; (B) as to the Business proposed by such stockholder, a brief
description of the Business, the text of the proposed Business (including the text of any resolution or resolutions proposed for
consideration and in the event that such Business includes a proposal to amend these Bylaws, the text of the proposed amendment),
the reason or reasons for conducting such Business at the meeting and any material interest or interests in such Business of such
stockholder and of the beneficial owner, if any, on whose behalf the Business is proposed; and (C) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the Nomination, Nominations or Business is/are made (1) the name
and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, if any, and any of
their respective affiliates or associates or others acting in concert with them, (2) the class, series and number of shares of
capital stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, if any,
(3) a representation that the stockholder is a holder of record of shares of capital stock of the Corporation entitled to vote
at such meeting and such stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy at
the meeting to propose such Nomination, Nominations or Business and (4) a representation as to whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends (x) to deliver by proxy statement and/or form of proxy to
holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the Business or
elect the nominee or nominees subject to the Nomination or Nominations and/or (y) to otherwise solicit proxies from
stockholders of the Corporation in support of such Nomination, Nominations or Business; provided, however, that if the
Business is otherwise subject to Rule 14a-8 (or any successor thereto) promulgated under the Exchange Act
(“Rule 14a-8”), the foregoing notice requirements shall be deemed satisfied by a stockholder if the
stockholder has notified the Corporation of his, her or its intention to present such Business at an annual meeting of stockholders
in compliance with Rule 14a-8, and such Business has been included in a proxy statement that has been prepared by the
Corporation to solicit proxies for such annual meeting of stockholders. The Corporation may require (1) any individual subject
to such Nomination to furnish such other information as the Corporation may reasonably require to determine the eligibility of such
individual subject to such Nomination to serve as a director of the Corporation if elected and (2) the stockholder giving
notice to furnish such other information as the Corporation may reasonably require to demonstrate that any Business is a proper
matter for stockholder action at an annual meeting of stockholders.
(iii) Notwithstanding
anything in the second sentence of Section 1.13(a)(ii) of these Bylaws to the contrary, in the event that the
number of directors to be elected to the Board of Directors by the stockholders generally entitled to vote (which, for the avoidance
of doubt, shall exclude any Class/Series Directors) at an annual meeting of stockholders is increased and there is no public
announcement by the Corporation naming the nominees for election to the additional directorships at least one hundred (100) days
prior to the first (1st) anniversary of the preceding year’s annual meeting of stockholders, a stockholder’s
notice required by this Section 1.13 shall also be considered timely, but only with respect to nominees for election to
such additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not
later than the close of business on the tenth (10th) day following the day on which such public announcement is first
made by the Corporation.
(b) Special
Meetings of Stockholders. Only such Business shall be conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting (or any supplement thereto); provided, however, that reference
therein to the election of directors or the election of members of the Board of Directors shall not include or be deemed to include Nominations.
Nominations may be made at a special meeting of stockholders at which one or more directors are to be elected by the stockholders generally
entitled to vote (which, for the avoidance of doubt, shall exclude any Class/Series Directors) pursuant to the Corporation’s
notice of meeting (or any supplement thereto) as aforesaid (provided that the Board of Directors has determined that directors
shall be elected at such meeting) (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation
who is a stockholder of record at the time the notice provided for in this Section 1.13 is delivered to the Secretary, who
is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 1.13.
In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of
Directors by the stockholders generally entitled to vote (which, for the avoidance of doubt, shall exclude any Class/Series Directors),
any such stockholder entitled to vote in such election may make a Nomination or Nominations of one or more individuals (as the case may
be) for election to such position(s) as specified in the Corporation’s notice of meeting pursuant to Section 1.13(b)(iii) of
these Bylaws, if the stockholder’s notice required by Section 1.13(a)(ii) of these Bylaws shall be delivered to
the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred twentieth
(120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th)
day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the
date of such special meeting and of the nominee(s) proposed by the Board of Directors to be elected at such special meeting. In no
event shall the public announcement of an adjournment or postponement of a special meeting of stockholders commence a new time period
(or extend any time period) for the giving of a stockholder’s notice as described above.
(c) General.
(i) Only individuals subject to a Nomination made in compliance with the procedures set forth in this Section 1.13 shall
be eligible for election at an annual or special meeting of stockholders, and only such Business shall be conducted at an annual or special
meeting of stockholders as shall have been brought before such meeting in accordance with the procedures set forth in this Section 1.13.
Except as otherwise provided by applicable law, the Board of Directors or the individual presiding over an annual or special meeting
of stockholders shall have the power and duty to determine whether (A) a Nomination or any Business proposed to be brought before
the meeting was or was not made, proposed or brought, as the case may be, in accordance with the procedures set forth in this Section 1.13
and (B) any proposed Nomination, Nominations or Business shall be disregarded or that such Nomination, Nominations or Business
shall not be considered or transacted at the meeting. Notwithstanding the foregoing provisions of this Section 1.13, if the
stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders to present
a Nomination, Nominations or Business, such Nomination, Nominations or Business shall be disregarded and such Nomination, Nominations
or Business shall not be considered or transacted at the meeting, notwithstanding that proxies in respect of such vote may have been
received by the Corporation.
(ii) For
purposes of this Section 1.13, “public announcement” shall include disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the
Corporation with or publicly furnished by the Corporation to the Securities and Exchange Commission pursuant to Section 13, 14
and 15(d) (or any successor thereto) of the Exchange Act.
(iii) Nothing
in this Section 1.13 shall be deemed to affect any (A) rights or obligations, if any, of stockholders with respect to
inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 (to the extent the Corporation or such proposals
are subject to Rule 14a-8), (B) rights or obligations, if any, of stockholders with respect to the inclusion of a nominee in
a universal proxy card pursuant to Rule 14a-19 (or any successor thereto) promulgated under the Exchange Act or (C) rights,
if any, of the holders of any class or series of capital stock of the Corporation as provided for or filed by or pursuant to the Certificate
of Incorporation and then outstanding to, solely and exclusively, elect one or more directors outstanding (collectively, the “Class/Series Directors”
and each, a “Class/Series Director”).
ARTICLE II
Board of Directors
Section 2.1
Number; Qualifications. Except for any Class/Series Directors, the Board of Directors shall consist of one or more members,
the number thereof to be determined from time to time by resolution or resolutions of the Board of Directors. Directors need not be stockholders.
Section 2.2
Resignation; Vacancies and Newly Created Directorships. Any director may resign at any time upon notice to the Corporation. Subject
to the rights, if any, of the holders of any class or series of capital stock of the Corporation as provided for or fixed by or pursuant
to the provisions of the Certificate of Incorporation and then outstanding, newly created directorships resulting from an increase in
the authorized number of directors or any vacancies on the Board of Directors resulting from the death, resignation, disqualification,
removal or other cause, shall be filled solely and exclusively by a majority vote of the directors then in office, although less than
a quorum, or by the sole remaining director. Any director so elected shall hold office until the expiration of the term of office of the
director whom he or she has replaced and until his or her successor shall be elected and qualified, subject to such director’s earlier
death, resignation, disqualification or removal. No decrease in the number of directors shall shorten the term of any incumbent director.
Section 2.3
Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware
and at such times as the Board of Directors may from time to time determine.
Section 2.4
Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of Delaware whenever called by the Chairperson of the Board
of Directors, the Chief Executive Officer or by the directors entitled to cast at least half of the votes of the whole Board of
Directors. Notice of a special meeting of the Board of Directors shall be given by or at the direction of the person or persons
calling the meeting (a) in the case of notice delivered by mail, at least five (5) days before the special meeting,
(b) in the case of notice delivered by courier, at least forty-eight (48) hours before the special meeting, or (c) in the
case of notice delivered by electronic mail, at least twenty-four (24) hours before the special meeting.
Section 2.5 Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate
in a meeting thereof by means of conference telephone or other communications equipment by means of which all individuals participating
in the meeting can hear each other, and participation in a meeting pursuant to this Section 2.5 shall constitute presence
in person at such meeting.
Section 2.6 Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes
of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the Certificate of
Incorporation, these Bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present
at a meeting at which a quorum is present shall be the act of the Board of Directors.
Section 2.7 Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board of Directors, if any, or
in his or her absence, by the Chief Executive Officer, if any, or in his or her absence, by a chairperson chosen at the meeting. The Secretary
shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any individual to act as secretary
of the meeting.
Section 2.8 Action by Unanimous Consent of Directors. Unless otherwise restricted by or pursuant to the Certificate of Incorporation or by
these Bylaws, (a) any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing
or by electronic transmission and (b) a consent may be documented, signed and delivered in any manner permitted by Section 116
of the General Corporation Law of the State of Delaware (the “General Corporation Law”). After action is taken, the
consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board of Directors, or the committee thereof,
in the same paper or electronic form as the minutes are maintained.
ARTICLE III
Committees
Section 3.1 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors
of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the
member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member.
Any such committee, to the extent permitted by applicable law and to the extent provided in the resolution of the Board of Directors or
these Bylaws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it.
Section 3.2 Committee
Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner
as the Board of Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
Officers
Section 4.1 Executive
Officers; Election; Qualifications; Term of Office, Resignation; Removal; Vacancies. The Board of Directors shall elect a Chief
Executive Officer, Chief Financial Officer and a Secretary, and shall choose a Chairperson of the Board of Directors from among its
members. The Board of Directors may also choose a President, one or more Vice Presidents, one or more Assistant Secretaries, a
Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable.
Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next
succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier death,
resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Except as otherwise provided by
or pursuant to the Certificate of Incorporation, the Board of Directors may remove any officer with or without cause at any time,
but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation. Any number of
offices may be held by the same person. Any vacancy occurring in any office of the Corporation by death, resignation, removal or
otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.
Section 4.2 Powers and Duties of Officers. The officers of the Corporation shall have such powers and duties in the management of the Corporation
as may be prescribed in these Bylaws or a resolution by the Board of Directors and, to the extent not so provided, as generally pertain
to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or
employee to give security for the faithful performance of his or her duties.
Section 4.3 Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution or resolutions adopted
by the Board of Directors, the Chairperson of the Board of Directors or the Chief Executive Officer may from time to time appoint an attorney
or attorneys or agent or agents of the Corporation, for, in the name and on behalf of the Corporation, to cast the votes which the Corporation
may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation or other
entity, or to consent, in the name of the Corporation as such holder, to any action by such other corporation or other entity, and may
instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to
be executed for, in the name and on behalf of the Corporation and under its corporate seal or otherwise, all such proxies or other instruments
as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney
or agent may also be exercised directly by the Chairperson of the Board of Directors or the Chief Executive Officer.
ARTICLE V
Stock
Section 5.1
Certificates. Every holder of capital stock of the
Corporation represented by certificates shall be entitled to have a certificate signed by, or in the name of, the Corporation by any
two (2) authorized officers of the Corporation representing the number of shares registered in certificate form. Each of the
Chairperson of the Board of Directors, the Chief Executive Officer and the Secretary, in addition to any other officers of the
Corporation authorized by the Board of Directors (by resolution or resolutions thereof) or these Bylaws, is hereby authorized to
sign certificates by, or in the name of, the Corporation. Any or all of the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue. The Corporation shall
not have the power to issue a certificate in bearer form.
Section 5.2 Lost,
Stolen or Destroyed Stock Certificates; Issuance of New Certificates or Uncertificated Shares. The Corporation may issue a new
certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s
legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated
shares.
Section 5.3
Restrictions. If the Corporation issues any shares that are not registered under the Securities Act of 1933, as amended (the “Securities
Act”), and registered or qualified under the applicable state securities laws, such shares may not be transferred without the
consent of the Corporation and the certificates evidencing such shares or the notice required by Delaware law, as the case may be, shall
contain substantially the following legend (or such other legend adopted by resolution or resolutions of the Board of Directors):
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY SET FORTH IN THE CORPORATION’S AMENDED AND RESTATED BYLAWS (AS THE SAME MAY BE AMENDED OR AMENDED AND RESTATED)
AND MAY NOT BE TRANSFERRED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM, WITHOUT THE CONSENT OF THE CORPORATION.
ARTICLE VI
Indemnification
Section 6.1 Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law,
any individual (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason
of the fact that he or she, or an individual for whom he or she is the legal representative, is or was a director or officer of the Corporation
or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, its participants or beneficiaries, against all liability and loss suffered and expenses (including attorneys’
fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3
of these Bylaws, the Corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced
by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific
case by the Board of Directors.
Section 6.2 Prepayment of Expenses. The Corporation shall to the fullest extent not prohibited by applicable law, pay the expenses (including
attorneys’ fees) incurred by a Covered Person in defending or otherwise participating in any proceeding in advance of its final
disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the
final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced
if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.
Section 6.3 Claims.
If (a) a claim for indemnification (following the final disposition of such proceeding) under this Article VI is
not paid in full within sixty (60) days after a written claim therefor by the Covered Person has been received by the Corporation or
(b) a claim for advancement of expenses under this Article VI is not paid in full within twenty (20) days after a
written claim therefor by the Covered Person has been received by the Corporation, as applicable, the Covered Person may file suit
to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense
(including attorneys’ fees) of prosecuting such claim. In any such action the Corporation shall have the burden of proving
that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law. In any
such action to enforce a claim for indemnification under this Article VI, neither the failure of the Corporation to have
made a determination prior to the commencement of such action that indemnification of the Covered Person is proper in the
circumstances because the Covered Person has met the applicable standard of conduct set forth in the General Corporation Law, nor an
actual determination by the Corporation that the Covered Person has not met such applicable standard of conduct, shall create a
presumption that the Covered Person has not met such applicable standard of conduct.
Section 6.4
Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any
other rights which such Covered Person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation,
these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 6.5 Other
Sources. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving
at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit
entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation,
partnership, joint venture, trust, enterprise or non-profit entity.
Section 6.6 Amendment or Repeal. Any amendment, repeal, modification or elimination of the foregoing provisions of this Article VI
shall not adversely affect any right or protection hereunder of any Covered Person in respect of any act or omission occurring prior to
the time of such amendment, repeal, modification or elimination.
Section 6.7 Other Indemnification and Prepayment of Expenses. This Article VI shall not limit the right of the Corporation, to
the extent and in the manner permitted by applicable law, to indemnify and to advance expenses to persons other than Covered Persons when
and as authorized by appropriate corporate action.
Section 6.8 Certain Terms. For purposes of this Article VI: (a) references to “the Corporation” shall include,
in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and
employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under this Article VI with respect to the resulting
or surviving corporation as such person would have with respect to such constituent corporation as if its separate existence had continued;
(b) references to “other enterprise” shall include employee benefit plans; (c) reference to “fines”
shall include any excise taxes assessed on a person with respect to any employee benefit plan; and (d) references to “serving
at the request of the Corporation or any of its consolidated subsidiaries” shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries.
ARTICLE VII
Miscellaneous
Section 7.1
Fiscal Year. The fiscal year of the Corporation shall be determined by resolution or resolutions of the Board of Directors.
Section 7.2 Seal. The corporate seal of the Corporation shall have the name of the Corporation inscribed thereon and shall be in such form
as may be approved from time to time by the Board of Directors.
Section 7.3 Manner of Notice. Except as otherwise provided in these Bylaws or permitted by applicable law, notices to directors and stockholders
shall be in writing or electronic transmission and delivered by mail, courier service or electronic mail to the directors or stockholders
at their addresses appearing on the records of the Corporation.
Section 7.4 Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute
a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted
at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified
in a waiver of notice.
Section 7.5 Form of Records. Any records administered by or on behalf of the Corporation in the regular course of its business, including
its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device,
method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases); provided
that the records so kept can be converted into clearly legible paper form within a reasonable time, and, with respect to the stock ledger,
that the records so kept comply with applicable law.
Section 7.6 Amendment of Bylaws. These Bylaws may be altered, amended or repealed, and new bylaws made, by the Board of Directors, but the
stockholders may make additional bylaws and may alter and repeal any bylaws whether adopted by them or otherwise. In addition to any affirmative
vote required by or pursuant to the provisions of the Certificate of Incorporation, any bylaw that is to be made, altered, amended or
repealed by the stockholders of the Corporation shall require the affirmative vote of the holders of at least a majority in voting power
of all of the then outstanding shares of capital stock of the Corporation entitled to vote, voting together as a single class.
Section 7.7 Forum
for Adjudication of Disputes.
(a) Delaware
Courts. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State
of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the
Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or employee of the
Corporation to the Corporation or the Corporation’s stockholders, (iii) any civil action to interpret, apply or enforce
any provision of the General Corporation Law, (iv) any civil action to interpret, apply, enforce or determine the validity of
the provisions of the Certificate of Incorporation or these Bylaws or (v) any action asserting a claim governed by the internal
affairs doctrine; provided, however, in the event that the Court of Chancery of the State of Delaware lacks
jurisdiction over such action, the sole and exclusive forum for such action shall be another state or federal court located within
the State of Delaware, in all cases, subject to such court having personal jurisdiction over the indispensable parties named as
defendants. For the avoidance of doubt, this Section 7.7(a) shall not apply to the resolution of any complaint
asserting a cause of action arising under the Securities Act.
(b) Federal
Courts. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United
States of America shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for the resolution of any
complaint asserting a cause of action arising under the Securities Act.
(c) Application.
Failure to enforce the foregoing provisions of this Section 7.7 would cause the Corporation irreparable harm and the Corporation
shall, to the fullest extent permitted by applicable law, be entitled to equitable relief, including injunctive relief and specific performance,
to enforce the foregoing provisions. Any person purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation
shall be deemed to have notice of and consented to the provisions of this Section 7.7. This Section 7.7 shall
not apply to any action asserting claims arising under the Exchange Act.
Adopted Effective As of [●], 2023.
EXHIBIT C
Directors
and Officers of the Surviving Corporation and SPAC
Surviving Corporation:
Directors:
Renji Bijoy
Kervin Pillay
Jake Thomsen
Two (2) directors will be designated by the Company
Officers:
Renji Bijoy, Chief Executive
Officer
Sarah Bijoy, Chief Financial Officer
Caleb Trees, Chief Operating Officer
SPAC:
Directors:
Renji Bijoy
Kervin Pillay
Jake Thomsen
Two (2) directors will be designated by the Company
Officers:
Renji Bijoy, Chief Executive Officer
Sarah Bijoy, Chief Financial Officer
Caleb Trees, Chief Operating Officer
SCHEDULE A
Company Knowledge Parties
Renji Bijoy
SCHEDULE B
SPAC Knowledge Parties
Jeff Ransdell
Guillermo Cruz
Jeronimo Peralta
Maggie
Vo
SCHEDULE C
Key Company Stockholders
Renji Bijoy
All Blue Investments (Singapore) Pte. Ltd
Sovereign’s Capital II, LP
Sovereign’s Capital III, LP
XX Investments LLC
Exhibit 10.1
Execution Version
STOCKHOLDER SUPPORT AGREEMENT
This STOCKHOLDER
SUPPORT AGREEMENT, dated as of August 8, 2023 (this “Agreement”), by and among Immersed Inc., a Delaware corporation
(the “Company”), Maquia Capital Acquisition Corporation, a Delaware corporation (“SPAC”), and certain
of the stockholders of the Company whose names appear on the signature pages of this Agreement (each, a “Stockholder”
and, collectively, the “Stockholders”).
WHEREAS,
SPAC, Maquia Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of SPAC (“Merger Sub”), and
the Company propose to enter into, simultaneously herewith, a business combination agreement (the “BCA”; terms used
but not defined in this Agreement shall have the meanings ascribed to them in the BCA), which provides, among other things, that, upon
the terms and subject to the conditions thereof, Merger Sub will be merged with and into the Company (the “Merger”),
with the Company surviving the Merger as a wholly owned subsidiary of SPAC; and
WHEREAS,
as of the date hereof, each Stockholder owns of record the number of shares of Company Common Stock and Company Preferred Stock as set
forth opposite such Stockholder’s name on Exhibit A hereto (all such shares of Company Common Stock and Company Preferred
Stock and any shares of Company Common Stock and Company Preferred Stock of which ownership of record or the power to vote is hereafter
acquired by the Stockholders prior to the termination of this Agreement being referred to herein as the “Shares”).
NOW, THEREFORE,
in consideration of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby,
the parties hereto hereby agree as follows:
1. Agreement
to Vote. Subject to the earlier termination of this Agreement in accordance with Section 5, each Stockholder, severally
and not jointly, hereby agrees to vote at any meeting of the stockholders of the Company, and in any action by written consent of the
stockholders of the Company (which written consent shall be delivered promptly after the Company requests such delivery, which request
will only be made after the Registration Statement becomes effective), all of such Stockholder’s Shares held by such Stockholder
at such time (a) in favor of the approval and adoption of the BCA and approval of the Merger and all other transactions contemplated
by the BCA and (b) against any action, agreement or transaction or proposal that would result in a breach of any covenant, representation
or warranty or any other obligation or agreement of the Company under the BCA or that would reasonably be expected to result in the failure
of the Merger from being consummated. Each Stockholder acknowledges receipt and review of a copy of the BCA.
2. Transfer
of Shares. Subject to the earlier termination of this Agreement in accordance with Section 5, each Stockholder, severally
and not jointly, agrees that it shall not, directly or indirectly, (a) sell, assign, transfer (including by operation of law), Lien,
pledge, dispose of or otherwise encumber any of the Shares or otherwise agree to do any of the foregoing, except for a sale, assignment
or transfer pursuant to the BCA or to another stockholder of the Company that is a party to this Agreement and bound by the terms and
obligations hereof, (b) deposit any Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy
or power of attorney with respect thereto that is inconsistent with this Agreement or (c) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of
law) or other disposition of any Shares; provided that the foregoing shall not prohibit the transfer of the Shares by a Stockholder to
an affiliate of such Stockholder, but only if such affiliate shall execute this Agreement or a joinder agreeing to become a party to
this Agreement.
3. Representations
and Warranties. Each Stockholder, severally and not jointly, represents and warrants to SPAC as follows:
(a) The
execution, delivery and performance by such Stockholder of this Agreement and the consummation by such Stockholder of the transactions
contemplated hereby do not and will not (i) conflict with or violate any United States or non-United States statute, law, ordinance,
regulation, rule, code, executive order, injunction, judgment, decree or other order applicable to such Stockholder, (ii) require
any consent, approval or authorization of, declaration, filing or registration with, or notice to, any person or entity, (iii) result
in the creation of any encumbrance on any Shares (other than under this Agreement, the BCA and the agreements contemplated by the BCA)
or (iv) in relation to the Stockholders that are not natural persons, conflict with or result in a breach of or constitute a default
under any provision of such Stockholder’s governing documents.
(b) As
of the date of this Agreement, such Stockholder owns exclusively of record and has good and valid title to the Shares set forth opposite
such Stockholder’s name on Exhibit A free and clear of any security interest, Lien, claim, pledge, proxy, option, right
of first refusal, agreement, voting restriction, limitation on disposition, charge, adverse claim of ownership or use or other encumbrance
of any kind, other than pursuant to (i) this Agreement, (ii) applicable securities laws, and (iii) the Company’s
Certificate of Incorporation and bylaws. As of the date of this Agreement, such Stockholder has the sole power (as currently in effect)
to vote and right, power and authority to sell, transfer and deliver such Shares, and such Stockholder does not own, directly or indirectly,
any other Shares.
(c) Such
Stockholder has the power, authority and capacity to execute, deliver and perform this Agreement and this Agreement has been duly authorized,
executed and delivered by such Stockholder.
4. Termination.
Notwithstanding anything in this Agreement to the contrary, this Agreement and the obligations of the Stockholders under this Agreement
shall automatically terminate upon the earliest of (a) the Effective Time; (b) the termination of the BCA in accordance with
its terms and (c) the effective date of a written agreement of the parties hereto terminating this Agreement. Upon termination of
this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided that nothing in this
Section 4 shall relieve any party of liability for any willful material breach of this Agreement occurring prior to termination.
The representations and warranties contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall
not survive the Closing or the termination of this Agreement.
(a) All
notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by e-mail or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses or e-mail addresses (or at such other address or email address for a
party as shall be specified in a notice given in accordance with this Section 5(b)):
If to SPAC , to it at:
Maquia Capital Acquisition Corporation
c/o Maquia Investments North America, LLC
2901 Florida Ave., Suite 840
Miami, FL 33133
Attention: Guillermo E. Cruz
Email:
guillermo@maquiacapital.com
with a copy to:
Allan M. Lerner, P.A.
2888 E. Oakland Park Blvd.
Fort Lauderdale, FL 33306
Attention: Allan M. Lerner
Email: allan@lernerpa.com
and
HomerBonner
1200 Four Seasons Tower
1441 Brickell Avenue
Miami, Florida 33131
Attention: Peter Homer
Email: phomer@ homerbonner.com if
to the Company, to it at:
Immersed Inc.
522 Congress Avenue, Suite 500
Austin, Texas 78701
Attention: Renji Bijoy
Email: renji@immersed.com
with a copy to:
Greenberg Traurig, LLP
333 S.E. 2nd Avenue, Suite 4400
Miami, FL 33131
Attention: Alan Annex
Email: alan.annex@gtlaw.com
If to a Stockholder, to the address or email address
set forth for Stockholder on the signature page hereof.
(b) If
any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(c) This
Agreement is intended to create, and creates, a contractual relationship and is not intended to create, and does not create, any agency,
partnership, joint venture or any like relationship between the parties hereto.
(d) This
Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements
and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement
shall not be assigned (whether pursuant to a merger, by operation of law or otherwise), by any party without the prior express written
consent of the other parties hereto.
(e) This
Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective permitted assigns, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. No Stockholder shall be liable for the breach by any other Stockholder of this Agreement.
(f) This
Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument
in writing signed by each of the parties hereto; provided, however, that an amendment, modification or supplement to this
Agreement that only affects a particular Stockholder may be entered into by an instrument in writing signed by the Company, SPAC and
that particular Stockholder.
(g) The
parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance
with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy
at law or in equity.
(h) This
Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed
in and to be performed in that State. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively
in any Delaware Chancery Court. The parties hereto hereby (i) submit to the exclusive jurisdiction of the Delaware Chancery Court
for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto, and (ii) irrevocably waive,
and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought
in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereunder
may not be enforced in or by any of the above- named courts.
(i) This
Agreement may be executed and delivered (including by facsimile or portable document format (.pdf) transmission) in counterparts, and
by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
(j) Without
further consideration, each party shall execute and deliver or cause to be executed and delivered such additional documents and instruments
and take such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(k) This
Agreement shall not be effective or binding upon any Stockholder until after such time as the BCA is executed and delivered by the Company,
SPAC and Merger Sub.
(l) Notwithstanding
anything herein to the contrary, each Stockholder signs this Agreement solely in such Stockholder’s capacity as a stockholder of
the Company, and not in any other capacity and, if applicable, this Agreement shall not limit or otherwise affect the actions of any
affiliate, employee or designee of such Stockholder or any of its affiliates in his or her capacity as an officer or director of the
Company.
(m) Each
of the parties hereto hereby waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect
to any litigation directly or indirectly arising out of, under or in connection with this Agreement. Each of the parties hereto
(i) certifies
that no Representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not,
in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties hereto have
been induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual
waivers and certifications in this Section 5(n).
[Signature pages follow]
IN WITNESS
WHEREOF, the parties have executed this Agreement as of the date first written above.
|
MAQUIA CAPITAL ACQUISITION CORPORATION |
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By: |
/s/ Jeff Ransdell |
|
Name: |
Jeff Ransdell |
|
Title: |
Chief Executive Officer |
[Signature Page to Stockholder Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
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IMMERSED INC. |
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By: |
/s/ Renji Bijoy |
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Name: |
Renji Bijoy |
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Title: |
Chief Executive Officer |
[Signature Page to
Stockholder Support Agreement]
EXHIBIT A
STOCKHOLDERS
Name of Stockholder |
Number
of Shares of Company
Common Stock Owned |
Number
of Shares of Company
Preferred Stock Owned |
Renji
Bijoy |
4,000,000 |
0 |
All
Blue Investments (Singapore) Pte. Ltd |
984,786 |
0 |
Sovereign’s
Capital II, LP |
0 |
1,638,195 |
Sovereign’s
Capital III, LP |
0 |
243,245 |
XX
Investments LLC |
0 |
3,227,960 |
Exhibit 10.2
Execution Version
SPONSOR SUPPORT AGREEMENT
This
SPONSOR SUPPORT AGREEMENT, dated as of August 8, 2023 (this “Agreement”), by and among Maquia Investments North
America, LLC, a Delaware limited liability company (“Sponsor”), certain of the stockholders, officers and directors
of Maquia Capital Acquisition Corporation, a Delaware corporation (“SPAC”), whose names appear on the signature pages of
this Agreement (together with the Sponsor, the “Sponsor Parties”), and Immersed Inc, a Delaware corporation (the “Company”).
WHEREAS,
SPAC, Maquia Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of SPAC (“Merger Sub”), and
the Company propose to enter into, simultaneously herewith, a business combination agreement (the “BCA”; terms used
but not defined in this Agreement shall have the meanings ascribed to them in the BCA), which provides, among other things, that, upon
the terms and subject to the conditions thereof, Merger Sub will be merged with and into the Company (the “Merger”),
with the Company surviving the Merger as a wholly owned subsidiary of SPAC;
WHEREAS,
as of the date hereof, each Sponsor Party owns of record the number of shares of SPAC Class A Common Stock and/or SPAC Class B
Common Stock as set forth opposite such Sponsor Party’s name on Exhibit A hereto (all such shares of SPAC Class A
Common Stock and SPAC Class B Common Stock and any shares of SPAC Class A Common Stock and SPAC Class B Common Stock of
which ownership of record or the power to vote is hereafter acquired by any of the Sponsor Parties prior to the termination of this Agreement
being referred to herein as the “Shares”); and
WHEREAS,
at the Closing, Sponsor will subject 1,362,000 of its shares of New SPAC Common Stock (the “Sponsor Earn-Out Shares”)
to forfeiture pursuant to Section 3 of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:
1. Agreement
to Vote. Subject to the earlier termination of this Agreement in accordance with Section 13, each Sponsor Party, severally
and not jointly, agrees that, at the SPAC Stockholders’ Meeting and in connection with any written consent of the SPAC Stockholders,
such Sponsor Party shall vote (or duly and promptly execute and deliver an action by written consent), or cause to be voted at such meeting
(or cause such consent to be duly and promptly executed and delivered with respect to), all of his, her or its Shares (i) in favor
of the approval and adoption of the BCA, the Transactions and any other proposal submitted for approval by the SPAC Stockholders in connection
with the Transactions, and (ii) against any action, agreement or transaction or proposal that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of SPAC under the BCA or that would reasonably be expected to delay the
consummation of the Transactions, increase the likelihood of the failure of the consummation of the Transactions or result in the failure
of the Transactions from being consummated. Each Sponsor Party acknowledges receipt and review of a copy of the BCA.
2. No
Transfer. Subject to the earlier termination of this Agreement in accordance with Section 13, each Sponsor Party, severally
and not jointly, agrees that it shall not, directly or indirectly, (a) sell, assign, transfer (including by operation of law), Lien,
pledge, dispose of or otherwise encumber any of the Shares or otherwise agree to do any of the foregoing, except for a sale, assignment
or transfer pursuant to the BCA or to another stockholder of SPAC that is a party to this Agreement and bound by the terms and obligations
hereof, (b) deposit any Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of
attorney with respect thereto that is inconsistent with this Agreement or (c) enter into any contract, option or other arrangement
or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other
disposition of any Shares; provided that the foregoing shall not prohibit the transfer of the Shares by a Stockholder to an affiliate
of such Stockholder, but only if such affiliate shall execute this Agreement or a joinder agreeing to become a party to this Agreement.
(a) Following
the Closing, if, at any time during the period following the Closing and expiring on the second (2nd) anniversary of the Closing
Date (the “Earn-Out Period”), (i) the price of the shares of New SPAC Common Stock equals or exceeds $13.00 per
share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any period of five (5) consecutive
Trading Days (the “First Level Earn-Out Target”), 500,000 Sponsor Earn-Out Shares (the “First Level Sponsor
Earn-Out Shares”) shall no longer be subject to forfeiture pursuant to this Section 3; (ii) the price of the
shares of New SPAC Common Stock equals or exceeds $15.00 per share (as adjusted for stock splits, stock dividends, reorganizations and
recapitalizations) for any period of five (5) consecutive Trading Days (the “Second Level Earn-Out Target”),
an additional 500,000 Sponsor Earn-Out Shares (the “Second Level Sponsor Earn-Out Shares”) shall longer be subject
to forfeiture pursuant to this Section 3; and (iii) the price of the shares of New SPAC Common Stock equals or exceeds
$20.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any period of five (5) consecutive
Trading Days (the “Third Level Earn-Out Target” and, together with the First Level Earn-Out Target and the Second
Level Earn-Out Target, the “Earn-Out Targets”), an additional 362,000 Sponsor Earn-Out Shares (the “Third
Level Sponsor Earn-Out Shares”) shall longer be subject to forfeiture pursuant to this Section 3.
(b) If
any Earn-Out Target is, or all of the Earn-Out Targets are, achieved on or prior to the last day of the Earn-Out Period, then following
the achievement of the applicable Earn-Out Target, Sponsor shall provide written notice to SPAC informing SPAC that the applicable Earn-Out
Target(s) have been satisfied and that the First Level Sponsor Earn-Out Shares, the Second Level Sponsor Earn-Out Shares or the
Third Level Sponsor Earn-Out Shares, as applicable, are no longer subject to forfeiture.
(c) If
any Earn-Out Target has not, or all of the Earn-Out Targets have not, been achieved on or prior to the last day of the Earn-Out Period,
then, the First Level Sponsor Earn-Out Shares, the Second Level Sponsor Earn-Out Shares or the Third Level Sponsor Earn-Out Shares, as
applicable, shall be forfeited and cancelled. Upon the forfeiture and cancellation of the First Level Sponsor Earn-Out Shares, the Second
Level Sponsor Earn-Out Shares or the Third Level Sponsor Earn-Out Shares, as applicable, pursuant to the foregoing sentence, Sponsor
shall surrender to SPAC for cancellation, the First Level Sponsor Earn-Out Shares, the Second Level Sponsor Earn-Out Shares or the Third
Level Sponsor Earn-Out Shares, as applicable
(d) For
purposes of this Section 3, “Trading Day” means any day on which shares of Common Stock are actually traded
on The Nasdaq Stock Market LLC.
4. Sponsor
Promissory Note Amendments. Sponsor and SPAC hereby agree to amend the terms of the Sponsor Promissory Notes, which such amended
terms shall be reasonably acceptable to the Company, such that upon, and subject to, the Closing, (a) an aggregate amount of $500,000
of the outstanding Sponsor Debt under the Sponsor Promissory Notes shall be paid in cash to the Sponsor, (b) an aggregate amount
of $500,000 of the outstanding Sponsor Debt under the Sponsor Promissory Notes shall remain place for a period of twelve (12) months
after the Closing Date with an interest rate of 8% per annum, and (c) the remaining amount of the Sponsor Debt under the Sponsor
Promissory Notes shall be paid in shares of New SPAC Common Stock (valued at the SPAC Redemption Price) at any time within twelve (12)
months of Closing.
| 5. | SPAC Extension Payments. |
(a) Sponsor
acknowledges that SPAC filed a proxy statement (as amended, the “SPAC Extension Proxy Statement”) and on May 5,
2023, received approval from the stockholders of SPAC of an amendment to the SPAC Organizational Documents, including its certificate
of incorporation, pursuant to which the deadline by which SPAC must complete its initial business combination (the “SPAC Business
Combination Deadline”) was extended for up to an additional nine one-month periods, from May 7, 2023 to up to February 7,
2024, and upon the exercise of each such extension of the SPAC Business Combination Deadline, Sponsor (or its affiliates or permitted
designees) will deposit into the Trust Account the amount set forth in the SPAC Extension Proxy Statement for each share of SPAC Class A
Common Stock that remains outstanding.
(b) Subject
to the earlier termination of this Agreement in accordance with Section 13, (i) prior to February 7, 2024, Sponsor
shall make the deposits into the Trust Account necessary to extend the SPAC Business Combination Deadline to February 7, 2024 as
set forth in the SPAC Extension Proxy Statement and the SPAC Organizational Documents and (ii) from and after February 7, 2024,
SPAC and Sponsor shall use commercially reasonable efforts to take any and all actions necessary, including filing a proxy statement,
amending the SPAC Organizational Documents and obtaining the necessary approval from the SPAC Stockholders, to further extend the SPAC
Business Combination Deadline after February 7, 2024 (each extension in clause (i) and (ii), a “SPAC Extension”)
until a date mutually agreed in writing between SPAC and the Company.
6. Waiver
of Redemption Rights. Each Sponsor Party, severally and not jointly, agrees not to (a) demand that SPAC redeem the Shares in
connection with Transactions or (b) otherwise participate in any such redemption by tendering or submitting any of the Shares for
redemption.
7. Waiver
of Anti-Dilution Rights. Each Sponsor Party, severally and not jointly, hereby waives the provisions of Section 4.3(b)(ii) of
the SPAC Certificate of Incorporation relating to the adjustment of the Initial Conversion Ratio (as defined in the SPAC Certificate
of Incorporation) in connection with the Transactions.
8. Confidentiality;
No Solicitation. Each Sponsor Party, severally and not jointly, agrees to be bound by and subject to Section 7.04 (Access
to Information; Confidentiality) and Section 7.05(b) (No Solicitation) of the BCA to the same extent as such
provisions apply to SPAC as if the Sponsor Parties were a party thereto.
9. Insider
Letter Agreement. As applicable, each Sponsor Party shall comply with, and fully perform all of its obligations, covenants, and agreements
set forth in, that certain Letter Agreement, dated as of May 4, 2021 (the “Insider Letter Agreement”). The Sponsor
Parties shall not modify or amend the Insider Letter Agreement.
10. Manage
Redemptions. Subject to the earlier termination of this Agreement in accordance with Section 13, Sponsor shall use its
commercially reasonable efforts to (i) retain funds in the Trust Account and (ii) minimize and mitigate the SPAC Redemption
Rights, including entering into non-redemption agreements with certain stockholders of SPAC Shareholders..
11. PIPE
Financing. Subject to the earlier termination of this Agreement in accordance with Section 13, Sponsor shall use its
commercially reasonable efforts to raise the PIPE Financing, including cooperating with SPAC and the Company as required and necessary
in connection with the PIPE Financing.
12. Representations
and Warranties. Each Sponsor Party, severally and not jointly, represents and warrants to the Company as follows:
(a) The
execution, delivery and performance by such Sponsor Party of this Agreement and the consummation by such Sponsor Party of the transactions
contemplated hereby do not and will not (i) conflict with or violate any United States or non-United States Law applicable to such
Sponsor Party, (ii) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any
person or entity, (iii) result in the creation of any encumbrance on any Shares (other than under this Agreement, the BCA and the
agreements contemplated by the BCA, including the other Ancillary Agreements) or (iv) in relation to the Sponsor Parties that are
not natural persons, conflict with or result in a breach of or constitute a default under any provision of such Sponsor Party’s
governing documents.
(b) As
of the date of this Agreement, such Sponsor Party owns exclusively and has good and valid title to the Shares set forth opposite such
Sponsor Party’s name on Exhibit A free and clear of any Lien, proxy, option, right of first refusal, agreement, voting
restriction, limitation on disposition, charge, adverse claim of ownership or use or other encumbrance of any kind, other than pursuant
to (i) this Agreement, (ii) applicable securities Laws and (iii) the SPAC Organizational Documents. As of the date of
this Agreement, such Sponsor Party has the sole power (as currently in effect) to vote and right, power and authority to sell, transfer
and deliver the Shares, and such Sponsor Party does not own, directly or indirectly, any other shares of SPAC Common Stock.
(c) Such
Sponsor Party has the power, authority and capacity to execute, deliver and perform this Agreement and this Agreement has been duly authorized,
executed and delivered by such Sponsor Party.
13. Termination.
Notwithstanding anything in this Agreement to the contrary, the obligations of the Sponsor Parties under (a) Sections 1,
2, 5, 6, 7, 8, 10, 11, 12, 13 and 14 of this Agreement shall automatically terminate
upon the earliest of (i) the Effective Time, (ii) the termination of the BCA in accordance with its terms, and (iii) the
effective date of a written agreement of the parties hereto terminating this Agreement; (b) Section 3 of this Agreement
shall automatically terminate upon the earliest of (i) the day after the last day of the Earn-Out Period and (ii) the termination
of the BCA in accordance with its terms; (c) Section 4 of this Agreement shall automatically terminate upon the earliest
of (i) the repayment to Sponsor of the remaining amount of the Sponsor Debt under the Sponsor Promissory Notes in shares of New
SPAC Common Stock pursuant to Section 4(b)) and (ii) the termination of the BCA in accordance with its terms; and (d) Section 9
of this Agreement shall automatically terminate upon the termination of the Insider Letter Agreement. Upon termination of this Agreement,
no party shall have any further obligations or liabilities under this Agreement. Notwithstanding any termination of this Agreement; provided
that nothing in this Section 13 shall relieve any party of liability for any willful material breach of this Agreement
occurring prior to termination. The representations and warranties contained in this Agreement and in any certificate or other writing
delivered pursuant hereto shall not survive the Closing or the termination of this Agreement.
(a) All
notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by e-mail or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses or e-mail addresses (or at such other address or e-mail address for a
party as shall be specified in a notice given in accordance with this Section 14(a)):
If to SPAC or Sponsor, to:
Maquia Capital Acquisition Corporation
c/o Maquia Investments North America, LLC
2901 Florida Ave. Suite 840, Miami, Florida, 33133
Attention: Guillermo E Cruz
Email:
guillermo@maquiacapital.com
with a copy to:
Allan M. Lerner, P.A.
2888 E. Oakland Park Blvd.
Fort Lauderdale, FL 33306
Attention: Allan M. Lerner
Email: allan@lernerpa.com
&
HomerBonner
1200 Four Seasons Tower
1441 Brickell Avenue
Miami, Florida 33131
Attention: Peter Homer
Email: phomer@ homerbonner.com
If to the Company, to:
Immersed Inc
522 Congress Avenue, Suite 500
Austin, Texas 78701
Attention: Renji Bijoy
Email: renji@immersed.com
with a copy to:
Greenberg Traurig, LLP
333 S.E. 2nd Avenue, Suite 4400
Miami, FL 33131
Attention: Alan Annex
Email: alan.annex@gtlaw.com
If to a Sponsor Party other than Sponsor, to the address
or email address set forth for such Sponsor Party on the signature page hereof.
(b) If
any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy,
all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(c) This
Agreement is intended to create, and creates, a contractual relationship and is not intended to create, and does not create, any agency,
partnership, joint venture or any like relationship between the parties hereto.
(d) This
Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior
agreements and undertakings, both written and oral, among the parties hereto, or any of them, with respect to the subject matter hereof.
This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise) by any party hereto without the
prior express written consent of the other parties hereto.
(e) This
Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective permitted assigns, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. No Sponsor Party shall be liable for the breach by any other Sponsor Party of this Agreement.
(f) This
Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument
in writing signed by each of the parties hereto; provided, however, that an amendment, modification or supplement to this
Agreement that only affects a particular Sponsor Party may be entered into by an instrument in writing signed by the Company and that
particular Sponsor Party.
(g) The
parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance
with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy
at law or in equity.
(h) This
Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed
in and to be performed in that State. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively
in any Delaware Chancery Court; provided, that if jurisdiction is not then available in the Delaware Chancery Court, then any
such legal Action may be brought in any federal court located in the State of Delaware or any other Delaware state court. The parties
hereto hereby (i) submit to the exclusive jurisdiction of the Delaware Chancery Court for the purpose of any Action arising out
of or relating to this Agreement brought by any party hereto, and (ii) irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue
of the Action is improper, or that this Agreement or the transactions contemplated hereunder may not be enforced in or by any of the
above-named courts.
(i) This
Agreement may be executed and delivered (including by facsimile or portable document format (.pdf) transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
(j) Without
further consideration, each party hereto shall execute and deliver or cause to be executed and delivered such additional documents and
instruments and take all such further action as may be reasonably necessary or desirable to consummate the transactions contemplated
by this Agreement.
(k) This
Agreement shall not be effective or binding upon any party hereto until after such time as the BCA is executed and delivered by SPAC,
Merger Sub and the Company.
(l) Each
of the parties hereto hereby waives to the fullest extent permitted by applicable Law any right it may have to a trial by jury with respect
to any Action directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby. Each of the
parties hereto (i) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of any Action, seek to enforce that foregoing waiver and (ii) acknowledges that it
and the other parties hereto have been induced to enter into this Agreement and the transactions contemplated hereby, as applicable,
by, among other things, the mutual waivers and certifications in this Section 14(l).
[Signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
|
MAQUIA CAPITAL ACQUISITION CORPORATION |
|
|
|
|
|
|
|
By: |
/s/ Jeff Ransdell |
|
Name: |
Jeff Ransdell |
|
Title: |
Chief Executive Officer |
|
MAQUIA INVESTMENTS NORTH AMERICA, LLC |
|
|
|
|
|
|
|
By: |
/s/ Guillermo Eduardo Cruz |
|
Name: |
Guillermo Eduardo Cruz |
|
Title: |
Director |
[Signature Page to
Sponsor Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
|
IMMERSED INC. |
|
|
|
|
|
|
|
By: |
/s/ Renji Bijoy |
|
Name: |
Renji Bijoy |
|
Title: |
Chief Executive Officer |
[Signature Page to
Sponsor Support Agreement]
EXHIBIT A
SPONSOR PARTIES
Name of Stockholder |
Number
of Shares of SPAC Class A
Common Stock Owned |
Number
of Shares of SPAC Class
B Common Stock Owned |
Maquia
Investments North America, LLC |
4,257,430 |
583,743 |
Officers:
| • | Jeff
Ransdell: Chief Executive Officer |
| • | Guillermo
Cruz: Chief Operating Officer |
| • | Jeronimo
Peralta: Chief Financial Officer |
| • | Maggie
Vo: Chief Investment Officer |
Directors:
| • | Pedro
Manuel Zorilla Velasco |
| • | Luis
Antonio Marquez-Heine |
Exhibit
99.1
Source:
Maquia Capital Acquisition Corporation
August 09,
2023 08:00 ET
Immersed Inc.,
a Global Leader in Spatial Computing Software Optimized for Enterprise, to go Public on Nasdaq via a Merger with Maquia Capital Acquisition
Corp.
|
● |
Immersed is among the leading enterprise
productivity providers of spatial computing software that allows users to work full-time in virtual AR/VR spaces, with over 730,000
unique users to date |
|
|
|
|
● |
The transaction values Immersed at $150,000,000 |
|
|
|
|
● |
Proceeds from the transaction are expected to
enable Immersed to complete the development of its cutting-edge AI assistant, “Curator”, and deliver its purpose-built,
lightweight headset, “Visor” |
AUSTIN,
Texas, Aug. 09, 2023 (GLOBE NEWSWIRE)
-- Immersed Inc., a leading provider of enterprise AI productivity solutions that use spatial computing to digitally transform the working
environment ("Immersed" or the "Company") and Maquia Capital Acquisition Corp. (NASDAQ: MAQCU) ("Maquia"),
a publicly traded special purpose acquisition company, announced today that they have entered into a definitive business combination
agreement that will result in Immersed becoming a publicly listed company. The transaction values Immersed at $150,000,000.
Upon closing, the
Company is expected to be named “Immersed Inc." and its common stock is expected to trade on The Nasdaq Stock Market under
the ticker symbol "AIMR". The Company will continue to be headquartered in Austin, Texas, and will continue to be led
by Renji Bijoy (Forbes 30 Under 30, 2021 and Georgia Tech Hall of Fame, 2021), Founder and CEO of Immersed.
Founded in 2017, Immersed
has developed some of the leading spatial computing software optimized for enterprise, that allows users to work full-time with their
team in virtual AR/VR spaces. Immersed is also developing purpose-built, light weight, spatial computing hardware that bridges the physical
world to the virtual world (the "Visor") and an AI assistant trained for enterprise office productivity using a multi-modal
Large Language Model (LLM) named "Curator", that it believes has the potential to vastly increase worker productivity and save
significant time and costs. With Immersed’s innovative spatial computing software and AI-driven solutions, Immersed believes
it is well positioned to help organizations adapt to the changing dynamics of the workforce and equip employees with the skills and capabilities
needed for the jobs of the future.
Immersed’s
application has already had over 730,000 unique users to date and its success can be seen by the number of hours that users have spent
working in it. Immersed users have spent 20 million minutes working in the Immersed application just this past quarter alone and monthly
active user usage to date reached a peak of about 87,000 monthly active users (as of May 2023).
“Seeing beyond
the current hype is challenging for most startups, but the Immersed team has been focused on delivering an enduring experience for spatial
computing,” says Immersed advisor Joe Lonesdale, co-founder of Palantir, current managing partner of 8VC, and early investor in
Oculus.
"Post
covid, flexible working is here to stay. As companies are forced to find remote working solutions, we have built the leading
Enterprise AI Solution to allow users to connect and work full- time in virtual spaces,” says Renji Bijoy, Founder and CEO of
Immersed. “Immersed is among the most used spatial computing software available today. Our users have spent the equivalent of
approximately 170 work years, or nearly 2 whole centuries, in Immersed just this past quarter. We believe going public will best
position us to grow faster and stronger, to lead the market as we roll out our Enterprise AI solution and our purpose-built Visor.
Upon a successful business combination and assuming no redemptions from Maquia’s trust account, Immersed expects to have
access to sufficient capital to execute its vision to disrupt and lead the Enterprise AI space,” adds Renji.
"I am thrilled
to partner with Renji and the entire team at Immersed as they continue to help global enterprises create efficiencies in their workforce
through cutting-edge spatial computing software and build their ability to derive actionable intelligence from a global, full-stack artificial
intelligence platform," said Guillermo Eduardo Cruz, COO of Maquia. "We believe this combination is highly compelling based
on Immersed’s innovative technology and potential to disrupt an entire sector in the future."
In connection with
executing the business combination agreement, Immersed has executed $1.95 million in strategic bridge financing by entering into
convertible notes with All Blue Capital, Pat Gelsinger (Intel’s CEO), Tim Tebow, Sovereign Capital, and others.
Additional
information about the proposed transaction, including a copy of the definitive business combination agreement, will be included in one
or more Current Reports on Form 8-K
to be filed by Maquia with the Securities and Exchange Commission ("SEC") and available at www.sec.gov.
Advisors
Greenberg Traurig, LLP is serving as
legal advisor to Immersed. EF Hutton is serving as capital markets advisor to Maquia and the Law Offices of Allan M. Lerner and Homer
Bonner Jacobs Ortiz are serving as legal advisors to Maquia.
About Immersed
Immersed
is a leading provider of enterprise AI productivity solutions that digitally transform the working environment to enhance worker and
company efficiency. Founded in 2017 and headquartered in Austin, Texas, Immersed
has developed some of the leading spatial computing software optimized for enterprise, that allows users to work full-time with their
team in virtual AR/VR spaces. Immersed is also developing purpose-built spatial computing hardware that bridges the physical world to
the virtual world (the "Visor", that Immersed intends to develop with a major AR/VR manufacturing company) and an AI assistant
trained for enterprise office productivity using a multi-modal Large Language Model (LLM) named "Curator" that it believes
has the potential to vastly increase worker productivity. With its innovative spatial computing software and AI-driven solutions, Immersed
believes it is well positioned to help organizations adapt to the changing dynamics of the workforce and equip employees with the skills
and capabilities needed for the jobs of the future.
About Maquia
Maquia Capital
Acquisition Corp (NASDAQ: MAQCU) is a special purpose acquisition company formed for the purpose of effecting a merger, capital stock
exchange, asset acquisition, stock purchase, reorganization or similar business combination with a business. Maquia is focused on partnering
with a high-quality software or technology-enabled growth business serving consumers or enterprises. For more information, please visit
https://maquiacapital.com/.
Additional Information and Where to
Find It
In connection
with the proposed business combination (the "Business Combination"), Maquia intends to file with the SEC a Registration
Statement on Form S-4 (as amended, the "Registration Statement"), which will include a preliminary proxy
statement/prospectus of Maquia and consent solicitation statement of Immersed, in connection with the Business Combination and
related matters. After the Registration Statement is declared effective, Maquia and Immersed will mail a definitive proxy
statement/prospectus and other relevant documents to their respective stockholders. This communication does not contain any
information that should be considered by Maquia’s or Immersed’s stockholders concerning the transaction and is not
intended to constitute the basis of any voting or investment decision in respect of the transaction or the securities of Maquia.
Maquia's and Immersed’sstockholders and other interested persons are advised to read, when available, the preliminary proxy
statement/prospectus/consent solicitation statement, and amendments thereto, and definitive proxy statement/prospectus/consent
solicitation statement in connection with Maquia's and Immersed solicitation of proxies for their stockholders' meetings to be held
to approve the Business Combination and related matters because the proxy statement/prospectus/consent solicitation statement will
contain important information about Maquia and Immersed
and the proposed Business Combination.
The definitive
proxy statement/prospectus/consent solicitation statement will be mailed to stockholders of Maquia and Immersed as of a record date to
be established for voting on the proposed Business Combination and related matters. Stockholders may obtain copies of the registration
statement, proxy statement/prospectus/consent solicitation statement and all other relevant documents filed or that will be filed with
the SEC by Immersed and Maquia, when available, without charge, at the SEC's website at www.sec.gov or by directing a request to: Maquia
Capital Acquisition Corp., at https://maquiacapital.com/ or a written request to: Guillermo@maquiacapital.com.
NEITHER THE SEC NOR ANY STATE SECURITIES
REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THIS PRESS RELEASE, PASSED UPON THE MERITS OR FAIRNESS OF
THE TRANSACTION OR RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PRESS RELEASE. ANY REPRESENTATION
TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
No Offer or Solicitation
This
communication is for informational purposes only and shall not constitute a proxy statement or solicitation of a proxy, consent or authorization
with respect to any securities or in respect of the proposed transaction, neither is it intended to nor does it constitute an offer to
sell or purchase, nor a solicitation of an offer to sell, buy or subscribe for any securities, nor is it a solicitation of any vote in
any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer of securities in
any jurisdiction in contravention of applicable law. No offer of securities shall be deemed to be made except by means of a prospectus
meeting the requirements of Section 10
of the Securities Act, or an exemption therefrom.
Participants in Solicitation
This
communication is not a solicitation of a proxy from any investor or securityholder. Maquia, Maquia Investments North America LLC (Maquia's
Sponsor), Immersed and their respective
directors, officers and other members of their management and employees may be deemed to be participants in the solicitation of proxies
from Maquia's stockholders with respect to the proposed Business Combination and related matters. Investors and security holders may
obtain more detailed information regarding the names, affiliations and interests of the directors and officers of Maquia or Immersed
in the proxy statement/prospectus/consent solicitation statement relating to the proposed Business Combination when it is filed with
the SEC. These documents may be obtained free of charge from the sources indicated below.
Cautionary Statement Regarding Forward-Looking
Statements
Certain statements
in this communication are "forward-looking statements" within the meaning of the "safe harbor" provisions of the
United States Private Securities Litigation Reform Act of 1995. When used in this press release, words such as "may", "should",
"expect", "intend", "will", "estimate", "anticipate", "believe", "predict",
"potential" or "continue", or variations of these words or similar expressions (or the negative versions of such
words or expressions) are intended to identify forward-looking statements. All statements other than statements of historical fact contained
in this press release, including statements regarding the proposed Business Combination, including the proforma enterprise value and
anticipated listing of Immersed on Nasdaq and intention to raise financing, as well as statements regarding the potential benefits, anticipated
market position and growth potential of Immersed’s existing and future innovative technology and products are forward-looking statements.
These
forward-looking statements and factors that may cause actual results to differ materially from current expectations include, but are
not limited to: the inability of the parties to complete the transactions contemplated by the definitive agreement relating to the
Business Combination in a timely manner or at all; the risk that the Business Combination may not be completed by Maquia's initial
business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by
Maquia; the outcome of any legal proceedings that may be instituted against Maquia or Immersed, the Company or others following the
announcement of the Business Combination and any definitive agreements with respect thereto; the inability to satisfy the conditions
to the consummation of the Business Combination, including the approval of the Business Combination by the stockholders of Maquia;
the occurrence of any event, change or other circumstance that could give rise to the termination of the definitive agreement
relating to the Business Combination; costs related to the proposed transaction; actual or potential conflicts of interest of
Maquia’s management with its public stockholders; changes to the proposed structure of the Business Combination that may be
required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the
Business Combination; the ability to meet stock exchange listing standards following the consummation of the Business Combination;
the effect of the announcement or pendency of the Business Combination on Immersed's business relationships, operating results,
current plans and operations of Immersed; the ability to recognize the anticipated benefits of the Business Combination, which may
be affected by, among other things, competition, the ability of the Company to grow and manage growth profitably, maintain
relationships with customers and suppliers and retain its management and key employees; changes in applicable laws or regulations;
the possibility that Maquia, Immersed or the Company may be adversely affected by other economic, business, and/or competitive
factors; Maquia's or Immersed's estimates of expenses and profitability; expectations with respect to future operating and financial
performance and growth, including the timing of the completion of the proposed Business Combination; Maquia’s and Immersed's
ability to execute on their business plans and strategy; the risk that the price of Macquia’s or the Company’s
securities may be volatile due to a variety of factors, including macro- economic and social environments affecting the
Company’s business and changes in the combined capital structure; the Company’s ability to successfully develop and
integrate its innovative products, including Visor; risks related to the spatial computing software market in general; and other
risks and uncertainties described from time to time in filings with the SEC.
The foregoing list
of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in
the "Risk Factors" section of the Registration Statement referenced above and other documents filed by Maquia from time to
time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results
to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they
are made. Readers are cautioned not to put undue reliance on forward-looking statements, and Maquia and Immersed assume no obligation
and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise,
except as otherwise required by law. Neither Maquia nor Immersed gives any assurance that Maquia or Immersed, or the Company, will achieve
any stated expectations.
Contacts
For Maquia Media Inquiries Guillermo
Cruz
guillermo@maquiacapital.com
For
Immersed Media Inquiries
John Daniels
Press@immersed.com
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