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 9, 2021
ENVIRONMENTAL IMPACT ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
Delaware | 001-39894 | 85-1914700 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) | ||
535 Madison Avenue New York, NY 10022 |
10022 | |||
(Address of principal executive offices) | (Zip Code) |
(212) 389-8109
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☒ | Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencements communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Units, each consisting of one share of Class A Common Stock and one-half of one Redeemable Warrant |
ENVIU | The NASDAQ Stock Market LLC | ||
Class A Common Stock, par value $0.0001 per share |
ENVI | The NASDAQ Stock Market LLC | ||
Warrants, each exercisable for one share Class A Common Stock for $11.50 per share |
ENVIW | The NASDAQ Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 | Entry Into A Material Definitive Agreement. |
Business Combination Agreement
On August 9, 2021, Environmental Impact Acquisition Corp., a Delaware corporation (ENVI), entered into a Business Combination Agreement (as it may be amended, supplemented or otherwise modified from time to time, the Business Combination Agreement), by and among ENVI, Honey Bee Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of ENVI (ENVI Merger Sub), and GreenLight Biosciences, Inc., a Delaware corporation (GreenLight). The transactions contemplated by the Business Combination Agreement are referred to herein as the Business Combination. Capitalized terms used in this Report but not otherwise defined in this Report have the meanings assigned to them in the Business Combination Agreement.
The Business Combination Agreement and the transactions contemplated thereby were approved by the boards of directors of each of ENVI, ENVI Merger Sub and GreenLight.
The Business Combination
The Business Combination Agreement provides for, among other things, the following transactions on the closing date (collectively, the Business Combination):
| The stockholders of GreenLight that have agreed to participate in the transaction will exchange (the Exchange) their interests in GreenLight for shares of common stock, par value $0.0001 per share, of ENVI (the ENVI Class A Common Stock); |
| ENVI Merger Sub will merge with and into GreenLight (the Merger), with GreenLight as the surviving company (the Surviving Company) in the merger and, after giving effect to such merger, becoming a wholly owned subsidiary of ENVI; |
| In connection with the Merger, each issued and outstanding share of capital stock of GreenLight (other than treasury stock and any dissenting shares) (a Company Share) will be converted into a number of shares of ENVI Class A Common Stock equal to the product of (x) the conversion ratio applicable to such Company Share multiplied by (y) the quotient obtained by dividing (a) 120,000,000, by (b) the number of Fully-Diluted Shares (as defined in the Business Combination Agreement) (such ratio, the Exchange Ratio); |
| Each option to purchase shares of capital stock of GreenLight (GreenLight Option) that is outstanding and unexercised immediately prior to the effective time of the Merger shall be converted into an option issued under the ENVI incentive equity plan to purchase a number of common shares of ENVI (each, a Rollover Option) equal to the product (rounded down to the nearest whole number) of (x) the number of Company Shares subject to such GreenLight Option immediately prior to the effective time of the Merger, multiplied by (y) the Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (i) the exercise price per share of such GreenLight Option immediately prior to the effective time of the Merger divided by (ii) the Exchange Ratio. Each Rollover Option shall be subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding GreenLight Option immediately prior to the effective time of the Merger, except (I) as specifically provided above, or (II) as to (1) terms rendered inoperative by reason of the transactions contemplated by the Business Combination Agreement (including any anti-dilution or other similar provisions that may have adjusted or may adjust the number of underlying shares that are subject to any such option until the effective time of the Merger), or (2) such other immaterial administrative or ministerial changes as the ENVI board of directors (or the compensation committee of the ENVI board of directors) may determine in good faith are appropriate to effectuate the administration of the Rollover Options; |
| Shares of ENVI Class A Common Stock issued in respect of shares of Greenlight common stock that are subject to vesting or forfeiture (Greenlight Restricted Shares), shall be subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Greenlight Restricted Share immediately prior to the effective time of the Merger; and |
| Each warrant of GreenLight (GreenLight Warrant), to the extent outstanding and unexercised, shall automatically, without any action of any party or any other person (including the holder thereof), be assumed by GreenLight and converted into a warrant to acquire shares of ENVI Class A Common Stock equal to the product (rounded down to the nearest whole number) of (x) the number of common shares of GreenLight (on an as converted basis) subject to such GreenLight Warrant immediately prior to the effective time of the Merger, multiplied by (y) the Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (i) the exercise price per share of such GreenLight Warrant immediately prior to the effective time of the Merger, divided by (ii) the Exchange Ratio. |
Business Combination Consideration
In accordance with the terms of the Business Combination Agreement, the aggregate consideration to be delivered to the GreenLight equity holders in connection with the transaction contemplated under the Business Combination Agreement will be 120,000,000 shares of ENVI Class A Common Stock, including any shares issuable upon exercise of the Rollover Options and the Assumed Warrants.
Representations and Warranties; Covenants
Under the Business Combination Agreement, the parties to the agreement made customary representations and warranties for transactions of this type. The representations and warranties made under the Business Combination Agreement will not survive the closing of the Merger. In addition, the parties to the Business Combination Agreement made covenants that are customary for transactions of this type, including maintaining exclusivity. Each party has agreed, not to, and will use their commercially reasonable efforts to cause their affiliates and the other representatives not to, directly or indirectly: (i) solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, an alternative acquisition proposal of such party; (ii) furnish or disclose any non-public information to any person in connection with, or that could reasonably be expected to lead to, an alternative acquisition proposal of such party; (iii) enter into any arrangement or understanding regarding an alternative acquisition proposal of such party; (iv) make any filings or submissions with the SEC in connection with any offering of any equity securities, or other securities, of such party, other than any such filings or submissions required or otherwise expressly contemplated by this Agreement; or (v) otherwise cooperate in any way with, or assist or participate in any negotiations or discussions with, any person in connection any alternative acquisition proposal of such party or a transaction of the type in clause (iv).
Conditions to Each Partys Obligations
Consummation of the transactions contemplated by the Business Combination Agreement is subject to customary conditions of the respective parties, and conditions customary to special purpose acquisition companies, relating to, among other things, restrictions on parties actions between the signing and closing of the transaction, the parties using commercially reasonable efforts to do what is necessary to complete the transactions contemplated by the Business Combination Agreement, maintaining confidentiality, issuing press releases and/or making public announcements, preparing the registration statement and proxy statement, fulfilling certain tax obligations, and providing various indemnification (and/or insurance) obligations.
In addition, consummation of the transactions contemplated by the Business Combination Agreement is subject to other closing conditions, including, among others: (i) there will have been no Company Material Adverse Effect (as defined in the Business Combination Agreement); (ii) the Aggregate Transaction Proceeds will be equal to or greater than $105,000,000; (iii) stockholder approval of both GreenLight and ENVI will have been obtained; and (iv) ENVI will have at least $5,000,001 of net tangible assets after giving effect to the transactions contemplated by the Business Combination Agreement.
Termination
The Business Combination Agreement may be terminated under certain customary and limited circumstances at any time prior to the closing of the Business Combination, including (i) by either party, if the closing of the Business Combination has not occurred on or prior to 11:59 P.M. Eastern time on February 10, 2022, unless the breach of any covenant or obligation under the Business Combination Agreement or any ancillary agreement by the party seeking to terminate proximately caused the failure to consummate the transactions contemplated by the Business Combination Agreement on or before such date, and (ii) by either party, if ENVIs stockholders do not approve the Business Combination at a meeting of ENVIs stockholders. If the Business Combination Agreement is validly terminated, none of the parties to the Business Combination Agreement will have any liability or any further obligation under the Business Combination Agreement, except in the case of willful breach or actual fraud.
A copy of the Business Combination Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference, and the foregoing description of the Business Combination Agreement is qualified in its entirety by reference thereto. The Business Combination Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of the Business Combination Agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement. The representations, warranties and covenants in the Business Combination Agreement are also modified in important part by the underlying disclosure schedules which are not filed publicly and which are subject to a contractual standard of materiality different from that generally applicable to stockholders and were used for the purpose of allocating risk among the parties rather than establishing matters as facts. We do not believe that these schedules contain information that is material to an investment decision.
Sponsor Letter Agreement
Concurrent with the execution of the Business Combination Agreement, CG Investments Inc. VI, a Canadian corporation (ENVI Sponsor), HB Strategies LLC, a Delaware limited liability company (HB Strategies), and the other holders of Class B Common Stock, par value $0.0001 per share, of ENVI (Class B Common Stock), entered into a Sponsor Letter Agreement (the Sponsor Letter Agreement) with ENVI and GreenLight, pursuant to which, among other things, (a) each of ENVI Sponsor, HB Strategies and the other holders of Class B Common Stock agreed to vote in favor of the each of the transactions contemplated in the Business Combination Agreement, and (b) if more than 25% of the issued and outstanding shares of ENVI Class A Common Stock (as of the date of the Sponsor Letter Agreement) elect to redeem their shares in accordance with the redemption procedures under ENVIs amended and restated certificate of incorporation, ENVI Sponsor and HB Strategies agreed to forfeit an aggregate number of warrants equal to 25% of the Companys outstanding private placement warrants.
A copy of the Sponsor Letter Agreement is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Sponsor Letter Agreement is qualified in its entirety by reference thereto.
Private Placement
Concurrently with the execution of the Business Combination Agreement, ENVI entered into Subscription Agreements with certain investors (collectively, the Private Placement Investors) pursuant to which, among other things, such investors agreed to subscribe for and purchase and ENVI agreed to issue and sell to such investors, an aggregate of 10,525,000 ENVI Class A Shares (the Private Placement Shares), at a purchase price of $10.00 per share (the Private Placement). The closing of the Private Placement is contingent upon, among other things, the substantially concurrent consummation of the Business Combination and related transactions.
In connection with the Private Placement, ENVI will grant the Private Placement Investors certain customary registration rights. The Private Placement Shares have not been registered under the Securities Act of 1933, as amended (the Securities Act), in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act and/or Regulation D or Regulation S promulgated thereunder without any form of general solicitation or general advertising.
The form of Subscription Agreement is attached as Exhibit 10.2 hereto and is incorporated herein by reference, and the foregoing description of the Subscription Agreement is qualified in its entirety by reference thereto.
Registration Rights and Transfer Restrictions
Concurrently with the execution of the Business Combination Agreement, ENVI entered into an Investor Rights Agreement (the Investor Rights Agreement) with certain stockholders of GreenLight, ENVI Sponsor, HB Strategies and the other holders of Class B Common Stock, pursuant to which ENVI agreed, following the consummation of the Merger, to register for resale, pursuant to Rule 415 under the Securities Act, certain shares of common stock of the Company, as well as other equity securities that are held by the parties thereto from time to time.
Additionally, the Investor Rights Agreements and the Bylaws that will be effective following the consummation of the Business Combination, contain certain restrictions on transfer with respect to the ENVI Class A Common Stock received as consideration for the Merger. Such restrictions begin at the consummation of the Business Combination and end at the date that is 180 days after the consummation of the Business Combination (the Lock-Up Period), except that the Lock-Up Period may shorten to 120 days if, following the consummation of the Business Combination, the last sale price of the ENVI Class A Common Stock equals or exceeds $15.00 per share for any 20 trading days within any 30-trading day period.
A copy of the Investor Rights Agreement is filed with this Current Report on Form 8-K as Exhibit 10.3 and is incorporated herein by reference, and the foregoing description of the Investor Rights Agreement is qualified in its entirety by reference thereto.
Transaction Support Agreement
Concurrently with the execution of the Business Combination Agreement, ENVI entered into Transaction Support Agreement (the Transaction Support Agreement) with certain stockholders of GreenLight (the Supporting Stockholders). Under the Transaction Support Agreements, the Supporting Stockholders agreed, within five business days following the declaration by the staff (the Staff) of the Securities and Exchange Commission (the SEC) that the proxy statement / prospectus relating to the approval by the ENVI stockholders of the transactions contemplated in the Business Combination Agreement is effective, to execute and deliver a written consent with respect to the outstanding Company Shares held by the Supporting Stockholder adopting the Business Combination Agreement and related transactions and approving the Merger. The Company Shares owned by the Supporting Stockholders represent a majority of the outstanding voting power (on a converted basis) of GreenLight.
The form of the Transaction Support Agreement is attached as Exhibit 10.4 hereto and is incorporated herein by reference, and the foregoing description of the Transaction Support Agreement is qualified in its entirety by reference thereto.
The Sponsor Letter Agreement, Subscription Agreements, Investor Rights Agreement and Transaction Support Agreements have been included to provide investors with information regarding its terms. They are not intended to provide any other factual information about ENVI or its affiliates. The representations, warranties, covenants and agreements contained in the Sponsor Letter Agreement, Subscription Agreements, Investor Rights Agreement and Transaction Support Agreements may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Sponsor Letter Agreement, Subscription Agreements, Investor Rights Agreement or Transaction Support Agreements instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Sponsor Letter Agreement, Subscription Agreements, Investor Rights Agreement or Transaction Support Agreements and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Sponsor Letter Agreement, Subscription Agreements, Investor Rights Agreement or Transaction Support Agreements, as applicable, which subsequent information may or may not be fully reflected in ENVIs public disclosures.
Item 7.01 | Regulation FD Disclosure. |
On August 10, 2021, ENVI issued a press release announcing the execution of the Business Combination Agreement and the Private Placement. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.
Furnished as Exhibit 99.2 hereto and incorporated into this Item 7.01 by reference is the investor presentation that ENVI has prepared for use in connection with the Private Placement, dated August 9, 2021.
The foregoing (including Exhibits 99.1 and 99.2) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the Exchange Act), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.
Additional Information
This current report relates to a proposed transaction between GreenLight Biosciences, Inc. and Environmental Impact Acquisition Corp. This press release does not constitute either (a) a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed business combination or (b) an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
ENVI intends to file a registration statement on Form S-4 with the SEC, which will include a document that serves as a prospectus and proxy statement of ENVI, referred to as a proxy statement/prospectus. The proxy statement/prospectus will be sent to all ENVI shareholders after the registration statement is declared effective by the SEC. ENVI also will file other documents regarding the proposed transaction with the SEC. This current report does not contain all of the information that will be contained in the proxy statement/prospectus or other documents filed with the SEC. Before making any voting decision, investors and security holders of ENVI are urged to read the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they become available because they will contain important information about the proposed transaction.
Investors and security holders will be able to obtain free copies of the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by ENVI through the website maintained by the SEC at www.sec.gov or by sending a written request to ENVI at: ENVI.Inquiries@cgf.com.
Participants in the Solicitation
ENVI, GreenLight and their respective directors, executive officers, other members of management, and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of ENVIs shareholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of ENVIs directors and officers in ENVIs filings with the SEC, including ENVIs Annual Report on Form 10-K for the year ended December 31, 2020, which was filed with the SEC on March 26, 2021, and such information and names of GreenLights directors and executive officers will also be in the Registration Statement on Form S-4 to be filed with the SEC by ENVI, which will include the proxy statement of ENVI for the Merger.
Forward Looking Statements
Certain statements made herein are not historical facts but are forward-looking statements for purposes of the safe harbor provisions under The Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as believe, may, will, estimate, continue, anticipate, intend, expect, should, would, plan, predict, potential, seem, seek, future, outlook and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding future events, the Business Combination between ENVI, GreenLight and Honey Bee Merger Sub, the estimated or anticipated future results and benefits of the combined company following the Business Combination, including the likelihood and ability of the parties to successfully consummate the Business Combination, future opportunities for the combined company, and other statements that are not historical facts. Many factors could cause actual future events to differ materially from the forward-looking statements in this press release, including but not limited to: the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect the price of ENVIs securities; the failure to satisfy the conditions to the consummation of the transaction, including the approval of the business combination agreement by the stockholders of ENVI, the satisfaction of the minimum cash amount held by ENVI following any redemptions by its public stockholders and the receipt of certain governmental and regulatory approvals; potential changes to the proposed structure of the business combination that may be required or appropriate to achieve the intended tax treatment or to satisfy other legal or regulatory requirements; the lack of a third-party valuation in determining whether or not to pursue the proposed transaction; the potential inability to complete the PIPE transaction; the occurrence of any event, change or other circumstance that could give rise to the termination of the business combination agreement; the potential inability to maintain the listing of ENVIs securities with the Nasdaq Stock Market, Inc.; the outcome of any legal proceedings that may be instituted against GreenLight or ENVI related to the business combination agreement or the proposed transaction; unanticipated costs related to the transaction and the potential failure to realize anticipated benefits of the transaction or to realize estimated pro forma results and underlying assumptions, including with respect to estimated shareholder redemptions; potential exercise of appraisal rights by some GreenLight stockholders, which may reduce available cash; the effect of the announcement or pendency of the transaction on GreenLights business relationships, operating results, and business generally; risks that the proposed transaction disrupts current plans and operations of GreenLight; the need to obtain regulatory approval for GreenLights product candidates; the risk that clinical trials will not demonstrate that GreenLights therapeutic product candidates are safe and effective; the risk that GreenLights product candidates will have adverse side effects or other unintended consequences, which could impair their marketability; the risk that GreenLights product candidates do not satisfy other legal and regulatory requirements for marketability in one or more jurisdictions; the risks of enhanced regulatory scrutiny of mRNA solutions; the potential inability to achieve GreenLights goals regarding scalability and affordability of its product candidates; the anticipated need for additional capital to achieve GreenLights business goals; changes in the industries in which GreenLight operates; changes in laws and regulations affecting the business of GreenLight; and the potential inability to implement or achieve business plans, forecasts, and other expectations after the completion of the proposed transaction. The foregoing list of factors is not exhaustive. Readers should carefully consider the foregoing factors and the other risks and uncertainties described in the Risk Factors section of the registration statement on Form S-4 discussed above and other documents filed by ENVI 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 ENVI and GreenLight 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. Neither ENVI nor GreenLight gives any assurance that GreenLight or ENVI, or the combined company, will achieve any result described in any forward-looking statement.
Disclaimer
This communication is for informational purposes only and is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities or the solicitation of any vote in any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer or securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request. |
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.
ENVIRONMENTAL IMPACT ACQUISITION CORP. | ||||||
Date: August 10, 2021 | By: | /s/ Daniel Coyne | ||||
Name: Daniel Coyne | ||||||
Title: Chief Executive Officer |
Exhibit 2.1
BUSINESS COMBINATION AGREEMENT
BY AND AMONG
ENVIRONMENTAL IMPACT ACQUISITION CORP.,
HONEY BEE MERGER SUB, INC.
AND
GREENLIGHT BIOSCIENCES, INC.
DATED AS OF AUGUST 9, 2021
TABLE OF CONTENTS
PAGE | ||||||
Article 1 CERTAIN DEFINITIONS |
3 | |||||
Section 1.1 |
Definitions | 3 | ||||
Article 2 MERGER |
25 | |||||
Section 2.1 |
The Merger | 25 | ||||
Section 2.2 |
Closing of the Transactions Contemplated by this Agreement | 27 | ||||
Section 2.3 |
Allocation Schedule; Aggregate Transaction Proceeds Schedule | 27 | ||||
Section 2.4 |
Treatment of Company Options and Company Warrants | 29 | ||||
Section 2.5 |
Company Shareholder Deliverables | 30 | ||||
Section 2.6 |
Withholding | 32 | ||||
Section 2.7 |
Company Dissenting Shares | 32 | ||||
Section 2.8 |
Further Assurances | 33 | ||||
Article 3 REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES |
33 | |||||
Section 3.1 |
Organization and Qualification | 33 | ||||
Section 3.2 |
Capitalization of the Group Companies | 34 | ||||
Section 3.3 |
Authority | 36 | ||||
Section 3.4 |
Financial Statements; Undisclosed Liabilities | 36 | ||||
Section 3.5 |
Consents and Requisite Governmental Approvals; No Violations | 37 | ||||
Section 3.6 |
Permits; Schedule of Permits | 38 | ||||
Section 3.7 |
Material Contracts | 38 | ||||
Section 3.8 |
Absence of Changes | 41 | ||||
Section 3.9 |
Litigation | 41 | ||||
Section 3.10 |
Compliance with Applicable Law | 41 | ||||
Section 3.11 |
Employee Plans | 42 | ||||
Section 3.12 |
Environmental Matters | 43 | ||||
Section 3.13 |
Intellectual Property | 44 | ||||
Section 3.14 |
Labor Matters | 47 | ||||
Section 3.15 |
Insurance | 49 | ||||
Section 3.16 |
Tax Matters | 49 | ||||
Section 3.17 |
Brokers | 51 | ||||
Section 3.18 |
Real and Personal Property | 51 | ||||
Section 3.19 |
Transactions with Affiliates | 52 | ||||
Section 3.20 |
Data Privacy and Security | 52 | ||||
Section 3.21 |
Compliance with International Trade & Anti-Corruption Laws | 53 | ||||
Section 3.22 |
Information Supplied | 54 | ||||
Section 3.23 |
Regulatory Compliance | 54 | ||||
Section 3.24 |
Suppliers | 55 | ||||
Section 3.25 |
Investigation; No Other Representations | 55 | ||||
Section 3.26 |
EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 56 |
i
Article 4 REPRESENTATIONS AND WARRANTIES RELATING TO THE ENVI PARTIES |
56 | |||||
Section 4.1 |
Organization and Qualification | 57 | ||||
Section 4.2 |
Authority | 57 | ||||
Section 4.3 |
Consents and Requisite Governmental Approvals; No Violations | 58 | ||||
Section 4.4 |
Brokers | 58 | ||||
Section 4.5 |
Information Supplied | 58 | ||||
Section 4.6 |
Capitalization of the ENVI Parties | 59 | ||||
Section 4.7 |
SEC Filings | 61 | ||||
Section 4.8 |
Absence of Changes | 61 | ||||
Section 4.9 |
Contracts; No Defaults | 61 | ||||
Section 4.10 |
Investment Company Act | 62 | ||||
Section 4.11 |
Trust Account; Financial Ability | 62 | ||||
Section 4.12 |
Transactions with Affiliates | 63 | ||||
Section 4.13 |
Litigation | 63 | ||||
Section 4.14 |
Compliance with Applicable Law | 63 | ||||
Section 4.15 |
ENVI Party Activities | 63 | ||||
Section 4.16 |
Internal Controls: Listing: Financial Statements | 64 | ||||
Section 4.17 |
No Undisclosed Liabilities | 65 | ||||
Section 4.18 |
Employees | 66 | ||||
Section 4.19 |
Tax Matters | 66 | ||||
Section 4.20 |
CFIUS Foreign Person Status | 68 | ||||
Section 4.21 |
Compliance with International Trade & Anti-Corruption Laws | 69 | ||||
Section 4.22 |
Change of Control Payments | 69 | ||||
Section 4.23 |
PIPE Financing | 69 | ||||
Section 4.24 |
Investigation; No Other Representations | 70 | ||||
Section 4.25 |
EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 71 | ||||
Article 5 COVENANTS |
71 | |||||
Section 5.1 |
Conduct of Business of the Company | 71 | ||||
Section 5.2 |
Efforts to Consummate; Transaction Litigation | 75 | ||||
Section 5.3 |
Confidentiality and Access to Information | 77 | ||||
Section 5.4 |
Public Announcements | 78 | ||||
Section 5.5 |
Tax Matters | 80 | ||||
Section 5.6 |
Company Exclusive Dealing | 81 | ||||
Section 5.7 |
ENVI Exclusive Dealing | 82 | ||||
Section 5.8 |
Preparation of Registration Statement / Proxy Statement | 83 | ||||
Section 5.9 |
ENVI Shareholder Approval | 84 | ||||
Section 5.10 |
Merger Sub Shareholder Approval | 85 | ||||
Section 5.11 |
Conduct of Business of ENVI | 85 | ||||
Section 5.12 |
Nasdaq Listing; ENVI Public Filings | 88 | ||||
Section 5.13 |
Trust Account | 88 | ||||
Section 5.14 |
Company Shareholder Approval | 88 | ||||
Section 5.15 |
Financing | 89 | ||||
Section 5.16 |
ENVI Indemnification; Directors and Officers Insurance | 90 | ||||
Section 5.17 |
Company Indemnification; Directors and Officers Insurance | 91 | ||||
Section 5.18 |
Post-Closing Directors and Officers | 92 |
ii
Section 5.19 |
PCAOB Financials | 94 | ||||
Section 5.20 |
ENVI Incentive Equity Plan; ENVI Employee Stock Purchase Plan | 95 | ||||
Section 5.21 |
FIRPTA Certificates | 95 | ||||
Section 5.22 |
Section 16 Matters | 95 | ||||
Section 5.23 |
Post-Closing Cooperation; Further Assurances | 96 | ||||
Section 5.24 |
Affiliate Agreements | 96 | ||||
Section 5.25 |
Pre-Closing Actions | 96 | ||||
Article 6 CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT |
96 | |||||
Section 6.1 |
Conditions to the Obligations of the Parties | 96 | ||||
Section 6.2 |
Other Conditions to the Obligations of the ENVI Parties | 97 | ||||
Section 6.3 |
Other Conditions to the Obligations of the Company | 98 | ||||
Section 6.4 |
Frustration of Closing Conditions | 99 | ||||
Article 7 TERMINATION |
99 | |||||
Section 7.1 |
Termination | 99 | ||||
Section 7.2 |
Effect of Termination | 101 | ||||
Article 8 MISCELLANEOUS |
101 | |||||
Section 8.1 |
Non-Survival | 101 | ||||
Section 8.2 |
Entire Agreement; Assignment | 101 | ||||
Section 8.3 |
Amendment | 102 | ||||
Section 8.4 |
Notices | 102 | ||||
Section 8.5 |
Governing Law | 103 | ||||
Section 8.6 |
Fees and Expenses | 103 | ||||
Section 8.7 |
Construction; Interpretation | 103 | ||||
Section 8.8 |
Exhibits and Schedules | 104 | ||||
Section 8.9 |
Parties in Interest | 104 | ||||
Section 8.10 |
Severability | 105 | ||||
Section 8.11 |
Counterparts; Electronic Signatures | 105 | ||||
Section 8.12 |
Knowledge of Company; Knowledge of ENVI | 105 | ||||
Section 8.13 |
No Recourse | 105 | ||||
Section 8.14 |
Extension; Waiver | 106 | ||||
Section 8.15 |
Waiver of Jury Trial | 106 | ||||
Section 8.16 |
Submission to Jurisdiction | 107 | ||||
Section 8.17 |
Remedies | 107 | ||||
Section 8.18 |
Trust Account Waiver | 108 |
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ANNEXES AND EXHIBITS
Annex A | PIPE Investors | |
Annex B | Supporting Company Shareholders | |
Exhibit A | Form of Sponsor Letter Agreement | |
Exhibit B | Form of PIPE Subscription Agreement | |
Exhibit C | Form of Investor Rights Agreement | |
Exhibit D | Form of Transaction Support Agreement | |
Exhibit E | Form of Letter of Transmittal | |
Exhibit F | Form of Amended and Restated Certificate of Incorporation of ENVI | |
Exhibit G | Form of Amended and Restated Bylaws of ENVI | |
Exhibit H | Form of Company Shareholder Written Consent | |
Exhibit I | Form of ENVI Incentive Equity Plan | |
Exhibit J | Form of ENVI Employee Stock Purchase Plan |
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BUSINESS COMBINATION AGREEMENT
This BUSINESS COMBINATION AGREEMENT (this Agreement), dated as of August 9, 2021, is made by and among Environmental Impact Acquisition Corp., a Delaware corporation (ENVI), Honey Bee Merger Sub, Inc., a Delaware corporation (Merger Sub), and GreenLight Biosciences, Inc., a Delaware corporation (the Company). ENVI, Merger Sub and the Company shall be referred to herein from time to time collectively as the Parties. Capitalized terms used but not otherwise defined herein have the meanings set forth in Section 1.1.
WHEREAS, (a) ENVI is a blank check company incorporated in Delaware on July 2, 2020 for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses, and (b) Merger Sub is a wholly owned Subsidiary of ENVI that was formed for purposes of consummating the transactions contemplated by this Agreement and the applicable Ancillary Documents;
WHEREAS, pursuant to the Governing Documents of ENVI, ENVI is required to provide an opportunity for its shareholders to have all or a portion of their outstanding ENVI Class A Shares redeemed on the terms and subject to the conditions set forth therein in connection with the consummation of the transactions contemplated hereby;
WHEREAS, as of the date of this Agreement, CG Investments Inc. VI, a Canadian corporation (the ENVI Sponsor), and the Other Class B Shareholders collectively own 5,175,000 ENVI Class B Shares;
WHEREAS, concurrently with the execution of this Agreement, the ENVI Sponsor, the Other Class B Shareholders, ENVI and the Company are entering into the sponsor letter agreement, substantially in the form attached hereto as Exhibit A (the Sponsor Letter Agreement), pursuant to which the ENVI Sponsor and each Other Class B Shareholder has agreed to (a) vote in favor of this Agreement and the transactions contemplated hereby (including the Merger), (b) waive any adjustment to the conversion ratio set forth in the Governing Documents of ENVI or any other anti-dilution or similar protection with respect to the ENVI Class B Shares (whether resulting from the transactions contemplated by the PIPE Subscription Agreements or otherwise), in each case, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement, (c) subject to certain exceptions, not, directly or indirectly, sell, assign, transfer (including by operation of law), create any Lien or pledge, dispose of or otherwise encumber any securities or other equity interests of ENVI or otherwise agree to do any of the foregoing, and (d) not solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, an ENVI Acquisition Proposal;
WHEREAS, on the Closing Date, Merger Sub will merge with and into the Company, with the Company as the Surviving Company in the Merger and, after giving effect to such Merger, the Company will be a wholly owned Subsidiary of ENVI, and each Company Share will be automatically converted as of the Effective Time into the right to receive a portion of the Transaction Share Consideration, in each case, on the terms and subject to the conditions set forth in this Agreement;
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WHEREAS, concurrently with the execution of this Agreement, the investors set forth on Annex A hereto (the PIPE Investors) are entering into a subscription agreement, substantially in the form attached hereto as Exhibit B, (each, as amended, restated or otherwise modified from time to time in accordance with its terms, the PIPE Subscription Agreements), pursuant to which, among other things, each PIPE Investor has agreed to subscribe for and purchase on the Closing Date, and ENVI has agreed to issue and sell to each such PIPE Investor on the Closing Date, the number of ENVI Class A Shares set forth in the applicable PIPE Subscription Agreement in exchange for the purchase price set forth therein (the aggregate purchase price under all PIPE Subscription Agreements, collectively, the PIPE Financing Amount, and the equity financing under all PIPE Subscription Agreements, collectively, the PIPE Financing), in each case, on the terms and subject to the conditions set forth therein;
WHEREAS, concurrently with the execution of this Agreement, each of ENVI, the ENVI Sponsor, certain Company Shareholders, and each of the Other Class B Shareholders are entering into an investor rights agreement, substantially in the form attached hereto as Exhibit C (the Investor Rights Agreement), pursuant to which, among other things, each of the ENVI Sponsor, the Company Shareholders party thereto and any such Other Class B Shareholders (a) will agree not to effect any sale or distribution of any Equity Securities of ENVI held by any of them during the lock-up period described therein and (b) will be granted certain registration rights with respect to their respective ENVI Shares, in each case, on the terms and subject to the conditions set forth therein;
WHEREAS, the members of the board of directors of ENVI (the ENVI Board) present at the meeting of the ENVI Board, have unanimously (a) approved this Agreement, the Ancillary Documents to which ENVI is or will be a party and the transactions contemplated hereby and thereby (including the Merger) and (b) recommended, among other things, the adoption and approval of this Agreement and the transactions contemplated by this Agreement (including the Merger) by the holders of ENVI Shares entitled to vote thereon;
WHEREAS, the board of directors of Merger Sub has unanimously (a) approved and adopted this Agreement, the Ancillary Documents to which Merger Sub is or will be a party and the transactions contemplated hereby and thereby (including the Merger) and (b) recommended, among other things, the adoption and approval of this Agreement and the transactions contemplated by this Agreement (including the Merger) by ENVI, as the sole stockholder of Merger Sub;
WHEREAS, ENVI, as the sole stockholder of Merger Sub, will as promptly as reasonably practicable (and in any event within one (1) Business Day) following the date of this Agreement, approve and adopt this Agreement, the Ancillary Documents to which Merger Sub is or will be a party and the transactions contemplated hereby and thereby (including the Merger);
WHEREAS, the board of directors of the Company (the Company Board) has unanimously (a) approved and adopted this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger) and (b) recommended, among other things, the adoption and approval of this Agreement and the transactions contemplated hereby (including the Merger) by the holders of Company Shares entitled to vote thereon (such recommendation, the Company Board Recommendation);
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WHEREAS, concurrently with the execution of this Agreement, each Company Shareholder set forth on Annex B hereto (collectively, the Supporting Company Shareholders) will duly execute and deliver to ENVI a transaction support agreement, substantially in the form attached hereto as Exhibit D (collectively, the Transaction Support Agreements), pursuant to which each such Supporting Company Shareholder will agree to, among other things, (a) support and vote in favor of this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger), (b) take, or cause to be taken, any actions necessary or advisable to cause certain agreements to be terminated effective as of immediately prior to the Effective Time, (c) subject to certain exceptions, not, directly or indirectly, sell, assign, transfer (including by operation of law), create any Lien or pledge, dispose of or otherwise encumber any securities or other equity interests of the Company or otherwise agree to do any of the foregoing, and (d) not solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal;
WHEREAS, each of the Parties intends for U.S. federal income tax purposes that (a) this Agreement constitutes a plan of reorganization within the meaning of Section 368 of the Code to which ENVI and the Company are parties within the meaning of Section 368(b) of the Code and Treasury Regulations promulgated thereunder and (b) the Merger (or, if applicable, the Alternative Transaction Structure) constitutes a transaction treated as a reorganization within the meaning of Section 368(a) of the Code (clauses (a) and (b), the Intended Tax Treatment); and
WHEREAS, in connection with the Closing, ENVI shall be renamed GreenLight Biosciences, Inc. and shall trade publicly on Nasdaq under a new ticker symbol selected by the Company.
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.
Additional ENVI SEC Reports has the meaning set forth in Section 4.7.
Affiliate means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term Control or control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise, and the terms controlled and controlling have meanings correlative thereto. Notwithstanding the foregoing or anything to the
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contrary herein, the Affiliates of the ENVI Sponsor shall not be deemed to include Canaccord Genuity LLC.
Affiliate Agreements has the meaning set forth in Section 3.7(a)(xv).
Aggregate Closing PIPE Proceeds means the aggregate cash proceeds actually received in respect of the PIPE Financing (whether on or prior to the Closing Date) and held in a bank account owned and controlled by an ENVI Party on the Closing Date (and, for the avoidance of doubt, after giving effect to the funding of the PIPE Financing on such date and before giving effect to the payment of any Unpaid ENVI Expenses or Unpaid ENVI Liabilities). Notwithstanding the foregoing, in no event shall the Aggregate Closing PIPE Proceeds include any cash that is ENVI Excluded Cash.
Aggregate Transaction Proceeds means an amount equal to (a) the sum of (i) the aggregate cash proceeds available for release to any ENVI Party from the Trust Account in connection with the transactions contemplated hereby (which amount, for the avoidance of doubt and without duplication, shall be calculated after giving effect to the ENVI Shareholder Redemption (i.e., reduced by the aggregate amount payable with respect to all ENVI Shareholder Redemptions, notwithstanding that such amounts may not have been paid out of the Trust Account at such time) and the distribution of any other amounts paid or payable to any Person other than an ENVI Party (or, if so requested in writing by the Company and agreed to in writing by ENVI prior to the Effective Time, the Company) from the Trust Account as provided in the Trust Agreement (i.e., reduced by any distribution of any such other amounts) (collectively, the Trust Satisfied Obligations)) and (ii) the Aggregate Closing PIPE Proceeds, minus (b) the Unpaid ENVI Expenses and the Unpaid ENVI Liabilities.
Aggregate Transaction Proceeds Schedule has the meaning set forth in Section 2.3(b).
Agreement has the meaning set forth in the introductory paragraph to this Agreement.
Allocation Schedule has the meaning set forth in Section 2.3(a).
Allocation Schedule Principles has the meaning set forth in Section 2.3(a).
Alternative Transaction Structure has the meaning set forth in Section 5.5(a)(ii).
Ancillary Documents means the Investor Rights Agreement, Sponsor Letter Agreement, the PIPE Subscription Agreements, the Transaction Support Agreements, the Letters of Transmittal and each other agreement, document, instrument and/or certificate executed, or contemplated to be executed, in connection with the transactions contemplated hereby, including the Merger.
Anti-Corruption Laws means, collectively, (a) the U.S. Foreign Corrupt Practices Act (FCPA), and (b) any other anti-bribery or anti-corruption Laws or Orders related to combatting bribery, corruption and money laundering.
Antitrust Laws means all Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, restraint of trade or lessening of
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competition through merger or acquisition, and the rules and regulations promulgated thereunder, including the HSR Act.
Assumed Warrant has the meaning set forth in Section 2.4(b).
Business Combination Proposal has the meaning set forth in Section 5.9.
Business Day means a day, other than a Saturday or Sunday, on which the principal offices of the SEC in Washington, D.C. are open to accept filings or, in the case of determining when any payment is due, commercial banks in New York, New York are open for the general transaction of business.
CBA means any collective bargaining agreement or other Contract with any labor union, labor organization, or works council.
Certificate of Merger has the meaning set forth in Section 2.1(b).
Certificates has the meaning set forth in Section 2.1(g).
Closing has the meaning set forth in Section 2.2.
Closing Company Audited Financial Statements has the meaning set forth in Section 5.19(a).
Closing Company Financial Statements has the meaning set forth in Section 5.19(a).
Closing Date has the meaning set forth in Section 2.2.
Closing Filing has the meaning set forth in Section 5.4(b).
Closing Notice has the meaning set forth in the PIPE Subscription Agreements.
Closing Press Release has the meaning set forth in Section 5.4(b).
COBRA means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any similar state Law.
Code means the U.S. Internal Revenue Code of 1986, as amended.
Company has the meaning set forth in the introductory paragraph to this Agreement.
Company Acquisition Proposal means (a) any direct or indirect acquisition (or other business combination), in one or a series of related transactions, (i) of the Equity Securities of the Company, in each case, that, if consummated, would result in a Person acquiring beneficial ownership of 15% or more of any class of outstanding voting Equity Securities of the Company or 15% or more of the outstanding voting Equity Securities of the Company (regardless of class) or (ii) of all or a portion of assets or businesses of the Group Companies which constitute 15% or more of the fair market value of the Group Companies, taken as a whole (in the case of each of clause (i) and (ii), whether by merger, consolidation, recapitalization, purchase or issuance of
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Equity Securities, tender offer or otherwise), or (b) any direct or indirect acquisition, in one or a series of related transactions, of 15% or more of any class of outstanding voting Equity Securities of the Company or 15% or more of the outstanding voting Equity Securities of the Company (regardless of class) (in each case of clauses (a) and (b) other than pursuant to the exercise or conversion of Company Options or Company Warrants in accordance with the terms of the Company Equity Plan, the underlying grant, award or similar agreement (as applicable)). Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby or any transaction with any ENVI Party shall constitute (in whole or in part) a Company Acquisition Proposal.
Company Affiliated Party has the meaning set forth in Section 3.19.
Company Affiliated Party Transactions has the meaning set forth in Section 3.19.
Company Board has the meaning set forth in the recitals to this Agreement.
Company Board Recommendation has the meaning set forth in the recitals to this Agreement.
Company Certificate of Incorporation means the Sixth Amended and Restated Certificate of Incorporation of the Company.
Company Change of Control Payment means any success, change of control, retention, transaction bonus or other similar payment or amount that any Group Company is required to pay to any current or former officer, director or employee of the Company or any other Company Affiliated Party (including any double trigger payments or similar amounts that may become due and payable based upon the occurrence of the Merger or the other transactions contemplated to occur on the Closing Date pursuant to this Agreement or the Ancillary Documents followed by or combined with one or more additional circumstances, matters or events) pursuant to the express terms of any plan, policy, arrangement or Contract to which the Company or any of its Subsidiaries is a party or by which any of their respective assets are bound as of or prior to the Closing, in each case, as a result of the consummation of the Merger or the other transactions contemplated to occur on the Closing Date pursuant to this Agreement or the Ancillary Documents; provided, however, that Company Change of Control Payment shall not include (a) the ENVI Class A Shares to be issued in respect of or that will become subject to, as applicable, the Rollover Options or the Assumed Warrants at the Effective Time on the terms and subject to the conditions of this Agreement, or (b) for the avoidance of doubt, Liabilities that become payable on the basis that any Group Company has breached, defaulted or failed to comply with or perform any obligations or covenants under a Contract.
Company Common Shares means shares of common stock, par value $0.001 per share, of the Company designated as Common Stock pursuant to the Company Certificate of Incorporation.
Company D&O Persons has the meaning set forth in Section 5.17(a).
Company Designee has the meaning set forth in Section 5.18(c).
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Company Disclosure Schedules means the disclosure schedules to this Agreement delivered to ENVI by the Company on the date of this Agreement.
Company Dissenting Shareholders has the meaning set forth in Section 2.7.
Company Dissenting Shares has the meaning set forth in Section 2.7.
Company Equity Award means, as of any determination time, each Company Option, each Company Restricted Share and each other award to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company of rights of any kind to receive any Equity Security of any Group Company under any Company Equity Plan or otherwise that is outstanding.
Company Equity Plan means the Companys 2012 Stock Incentive Plan and each other plan that provides for the award to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company of rights of any kind to receive Equity Securities of any Group Company or benefits measured in whole or in part by reference to Equity Securities of any Group Company.
Company Equityholders means, collectively, the Company Shareholders, the holders of Company Equity Awards and the holders of Company Warrants as of any determination time prior to the Effective Time.
Company Expenses means, as of any determination time, the aggregate amount, without duplication, of all fees, expenses, costs, disbursements, commissions or other amounts incurred by or on behalf of any Group Company or that any Group Company is obligated to pay, whether or not such amounts are due and payable, in connection with, or as a result of, the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers, consultants, or other agents or service providers of any Group Company, and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to any Group Company pursuant to this Agreement or any Ancillary Document, including fifty percent (50%) of the HSR Act filing fees; provided, however, notwithstanding the foregoing or anything to the contrary herein, the Company Expenses shall not include any ENVI Expenses or any fees, expenses, commissions or other amounts that are expressly contemplated to be allocated to and paid by the ENVI Parties pursuant to this Agreement or any Ancillary Document.
Company Fundamental Representations means the representations and warranties set forth in Section 3.1(a) and Section 3.1(b) (Organization and Qualification), Section 3.2(a) through Section 3.2(c), Section 3.2(d) and Section 3.2(f) (Capitalization of the Group Companies), Section 3.3 (Authority) and Section 3.17 (Brokers).
Company IT Systems means all computer systems, Software and hardware, communication systems, servers, network equipment and related documentation, including any outsourced systems and Processes, in each case, relied on, owned, licensed or leased by a Group Company.
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Company Knowledge Parties has the meaning set forth in Section 8.12.
Company Licensed Intellectual Property means Intellectual Property Rights owned by any Person (other than a Group Company) that is licensed to any Group Company.
Company Material Adverse Effect means any change, event, effect or occurrence that, individually or in the aggregate with any other change, event, effect or occurrence, has had or would reasonably be expected to have a material adverse effect on (a) the business, results of operations or financial condition of the Group Companies, taken as a whole, or (b) the ability of the Company to consummate the Merger, in each case, in accordance with the terms of this Agreement; provided, however, that, in the case of clause (a), none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur: any adverse change, event, effect or occurrence arising after the date of this Agreement from or related to (i) general business or economic conditions in or affecting the United States, or changes therein, or the global economy generally, (ii) any national or international political or social conditions in the United States or any other country, including the engagement by the United States or any other country in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism, (iii) changes in conditions of the financial, banking, capital or securities markets generally in the United States or any other country or region in the world, or changes therein, including changes in interest rates in the United States or any other country and changes in exchange rates for the currencies of any countries, (iv) changes in any applicable Laws or accounting standards (including legally binding interpretations thereof), (v) any change, event, effect or occurrence that is generally applicable to the industries or markets in which any Group Company operates, (vi) the execution or public announcement of this Agreement or the pendency or consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships, contractual or otherwise, of any Group Company with employees, customers, investors, contractors, lenders, suppliers, vendors, partners, licensors, licensees, payors or other third parties related thereto (provided that the exception in this clause (vi) shall not apply to the representations and warranties set forth in Section 3.5(b) to the extent that its purpose is to address the consequences resulting from the execution or public announcement of this Agreement or the pendency or the consummation of the transactions contemplated hereby or the condition set forth in Section 6.2(a) to the extent it relates to such representations and warranties), (vii) any failure by any Group Company to meet, or changes to, any internal or published budgets, projections, forecasts, estimates or predictions (although the underlying facts and circumstances resulting in such failure may be taken into account to the extent not otherwise excluded from this definition pursuant to clauses (i) through (vi) or (viii)), or (viii) any hurricane, tornado, flood, earthquake, tsunami, natural disaster, mudslides, wild fires, epidemics, pandemics (including COVID- 19) or quarantines, acts of God or other natural disasters or comparable events in the United States or any other country or region in the world, or any escalation of the foregoing; provided, however, that any change, event, effect or occurrence resulting from a matter described in any of the foregoing clauses (i) through (v) or clause (viii) may be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonable be expected to occur to the extent such change, event, effect or occurrence has or has had a disproportionate adverse effect on the Group Companies, taken as a whole, relative to other participants operating in the industries or markets in which the Group Companies operate.
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Company Option means, as of any determination time, each option to purchase Company Common Shares that is outstanding and unexercised, whether granted under a Company Equity Plan or otherwise (which, for the avoidance of doubt, shall not include any Company Warrant).
Company Owned Intellectual Property means all Intellectual Property Rights that are owned or purported to be owned by the Group Companies.
Company Preferred Shares means, collectively, the Company Series A Preferred Shares, the Company Series B Preferred Shares, the Company Series C Preferred Shares and the Company Series D Preferred Shares.
Company Product means each platform or product candidate that is being researched, tested, developed or manufactured by or on behalf of the Group Companies.
Company Registered Intellectual Property means all Registered Intellectual Property owned or purported to be owned by or filed by or in the name of any Group Company that has not been cancelled, expired, lapsed, or been abandoned.
Company Required Shareholder Approval has the meaning set forth in Section 3.3.
Company Restricted Share means a Company Common Share that is subject to vesting and forfeiture, whether granted under a Company equity plan or otherwise.
Company Series A Preferred Shares means shares of preferred stock, par value $0.001 per share, of the Company designated as (i) Series A-1 Preferred Stock, (ii) Series A-2 Preferred Stock, and (iii) Series A-3 Preferred Stock, pursuant to the Company Certificate of Incorporation.
Company Series B Preferred Shares means shares of preferred stock, par value $0.001 per share, of the Company designated as Series B Preferred Stock pursuant to the Company Certificate of Incorporation.
Company Series C Preferred Shares means shares of preferred stock, par value $0.001 per share, of the Company designated as Series C Preferred Stock pursuant to the Company Certificate of Incorporation.
Company Series D Preferred Shares means shares of preferred stock, par value $0.001 per share, of the Company designated as Series D Preferred Stock pursuant to the Company Certificate of Incorporation.
Company Shareholder Written Consent has the meaning set sort in Section 5.14(a).
Company Shareholder Written Consent Deadline has the meaning set sort in Section 5.14(a).
Company Shareholders means, collectively, the holders of Company Shares as of any determination time prior to the Effective Time.
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Company Shareholders Agreement means, collectively, (a) the Fifth Amended and Restated Investors Rights Agreement, dated June 15, 2020, by and among the Company and the Company Shareholders party thereto, (b) the Fifth Amended and Restated Voting Agreement, dated June 15, 2020, by and among the Company and the Company Shareholders party thereto and (c) the Fifth Amended and Restated Right of First Refusal and Co-Sale Agreement, dated June 15, 2020, by and among the Company and the Company Shareholders party thereto.
Company Shares means, collectively, the Company Series A Preferred Shares, the Company Series B Preferred Shares, the Company Series C Preferred Shares, the Company Series D Preferred Shares and the Company Common Shares.
Company Warrants means any warrant to purchase shares of Company Shares.
Confidentiality Agreement means that certain Mutual Confidentiality Agreement, dated as of February 12, 2021, by and between the Company and ENVI.
Consent means any notice, authorization, qualification, registration, filing, notification, Permit, waiver, Order, consent, clearance, waiting period expiration or termination, or approval to be obtained from, filed with or delivered to, a Governmental Entity or other Person.
Contract or Contracts means any agreement, contract, license, lease, obligation, undertaking or other commitment or arrangement that is legally binding upon a Person or any of his, her or its properties or assets.
Conversion Ratio means, as to each class of capital stock of the Company, the conversion ratio for such class of stock set forth in the Governing Documents of the Company.
Copyrights has the meaning set forth in the definition of Intellectual Property Rights.
COVID-19 means SARS-CoV-2 or COVID-19 and any evolutions thereof or related or associated epidemics, pandemic or disease outbreaks.
Creator has the meaning set forth in Section 3.13(d).
Designated Material Contracts has the meaning set forth in Section 5.1(b)(vii).
DGCL means the Delaware General Corporate Law.
Disqualification Event means a bad actor disqualifying event described in Rule 506(d)(1)(i)-(viii) promulgated under the Securities Act.
Disqualified Designee means any director designee to whom any Disqualification Event is applicable, except for a Disqualification Event as to which Rule 506(d)(2)(ii) or (d)(2)(iii) or (d)(3) is applicable.
DPA had the meaning set forth in Section 4.20.
Effective Time has the meaning set forth in Section 2.1(b).
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Employee Benefit Plan means each employee benefit plan (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each other benefit or compensatory plan, program, policy or Contract that any Group Company maintains, sponsors or contributes to, or under or with respect to which any Group Company has any Liability, other than any plan or program sponsored or maintained by a Governmental Entity.
Employee Stock Purchase Plan Proposal has the meaning set forth in Section 5.9.
ENVI means Environmental Impact Acquisition Corp., a Delaware corporation, and anticipated to be renamed GreenLight Biosciences, Inc., a Delaware corporation.
ENVI Acquisition Proposal means (a) any direct or indirect acquisition (or other business combination), in one or a series of related transactions under which ENVI or any of its controlled Affiliates, directly or indirectly, (i) acquires or otherwise purchases any other Person(s), (ii) engages in a business combination with any other Person(s) or (iii) acquires or otherwise purchases all or a material portion of the assets, Equity Securities or businesses of any other Persons(s) (in the case of each of clause (i), (ii) and (iii), whether by merger, consolidation, recapitalization, purchase or issuance of Equity Securities, tender offer or otherwise), (b) any equity, debt or similar investment in ENVI or any of its controlled Affiliates or (c) any other Business Combination as defined in the Prospectus. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby shall constitute an ENVI Acquisition Proposal.
ENVI Affiliated Party has the meaning set forth in Section 4.12.
ENVI Affiliated Party Transactions has the meaning set forth in Section 4.12.
ENVI Benefit Plan means each employee benefit plan (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each other benefit or compensatory plan, program, policy or Contract that ENVI, Merger Sub or any of their Subsidiaries maintains, sponsors or contributes to, or under or with respect to which ENVI, Merger Sub or any of their Subsidiaries has any Liability, other than any plan or program sponsored or maintained by a Governmental Entity.
ENVI Board has the meaning set forth in the recitals to this Agreement.
ENVI Board Recommendation has the meaning set forth in Section 5.9.
ENVI Change in Recommendation has the meaning set forth in Section 5.9.
ENVI Change of Control Payment means any success, change of control, retention, transaction bonus or other similar payment or amount that any ENVI Party is required to pay to any current or former officer, director or employee of ENVI or any other ENVI Affiliated Party (including any double trigger payments or similar amounts that may become due and payable based upon the occurrence of the Merger or the other transactions contemplated to occur on the Closing Date pursuant to this Agreement or the Ancillary Documents followed by or combined with one or more additional circumstances, matters or events) pursuant to the express terms of any plan, policy, arrangement or Contract, to which any ENVI Party is a party or by which any of the
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ENVI Parties assets are bound as of or prior to the Closing, in each case, as a result of the consummation of the Merger or the other transactions contemplated to occur on the Closing Date pursuant to this Agreement or the Ancillary Documents; provided, however, that ENVI Change of Control Payment shall not include any ENVI Expenses, or, for the avoidance of doubt, any Liabilities that become payable on the basis any ENVI Party has breached, defaulted or failed to comply with or perform any obligations or covenants under a Contract.
ENVI Class A Shares means ENVIs shares of Class A common stock, par value $0.0001 per share.
ENVI Class B Shares means ENVIs shares of Class B common stock, par value $0.0001 per share.
ENVI Common Stock means, collectively, (i) ENVI Class A Shares and (ii) ENVI Class B Shares.
ENVI D&O Persons has the meaning set forth in Section 5.16(a).
ENVI Designee has the meaning set forth in Section 5.18(b).
ENVI Disclosure Schedules means the disclosure schedules to this Agreement delivered to the Company by ENVI on the date of this Agreement in connection with the execution of this Agreement.
ENVI Employee Stock Purchase Plan has the meaning set forth in Section 5.20.
ENVI Excluded Cash means, without duplication of the Trust Satisfied Obligations or any other amounts included within clause (b) of the definition of Aggregate Transaction Proceeds, any cash of the ENVI Parties that is not freely usable by such ENVI Party because of restrictions or limitations on use by any Contract to which an ENVI Party is bound (other than, for the avoidance of doubt, any restrictions or limitations on use under this Agreement or the Ancillary Documents).
ENVI Expenses means, as of any determination time, the aggregate amount, without duplication, of all fees, expenses, costs, disbursements, commissions or other amounts incurred by or on behalf of any ENVI Party or that any ENVI Party is obligated to pay, whether or not such amounts are due and payable, in connection with, or as a result of, the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, including (a) the fees and expenses of outside legal counsel, accountants, underwriters, advisors, brokers, placement agents, investment bankers, consultants, or other agents or service providers of any ENVI Party (including with respect to this Agreement and the PIPE Financing) and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to any ENVI Party pursuant to this Agreement or any Ancillary Document, including fifty percent (50%) of the HSR Act filing fees; provided, however, notwithstanding the foregoing or anything to the contrary herein, the ENVI Expenses shall not include (i) the Trust Satisfied Obligations to the extent such obligations will be satisfied from the Trust Account, or (ii) the Company Expenses or any fees, expenses, commissions or other amounts that are expressly
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contemplated to be allocated to and paid by Company or any Company Equityholder pursuant to this Agreement or any Ancillary Document.
ENVI Financial Statements means all of the financial statements of ENVI included in the ENVI SEC Reports.
ENVI Fundamental Representations means the representations and warranties set forth in Section 4.1 (Organization and Qualification), Section 4.2 (Authority), Section 4.4 (Brokers), Section 4.6 (Capitalization of the ENVI Parties) and Section 4.8 (Absence of Changes).
ENVI Incentive Equity Plan has the meaning set forth in Section 5.20.
ENVI Intervening Event means any material change, event, circumstance, occurrence, effect, development or state of facts (x) that was not known to the ENVI Board as of the date hereof and that becomes known to the ENVI Board after the date hereof and prior to the receipt of the ENVI Shareholder Approval and (y) that does not relate to a breach by ENVI of its obligations under Section 5.7.
ENVI Knowledge Parties has the meaning set forth in Section 8.12.
ENVI Liabilities means, as of any determination time, the aggregate amount, without duplication, of Liabilities of the ENVI Parties as of such determination time that would be required to be set forth on a balance sheet of the ENVI Parties prepared in accordance with GAAP (as in effect as of the date hereof), including any Liabilities that would, as of such determination time, be required to be set forth on a balance sheet of the ENVI Parties prepared in accordance with GAAP (as in effect as of the date hereof) arising in connection with the transactions contemplated by this Agreement or any Ancillary Documents, the performance of an ENVI Partys covenants or agreements in this Agreement or any Ancillary Document to which it is or is contemplated hereby to be a party or the consummation of the transactions contemplated hereby or thereby; provided, however, notwithstanding the foregoing, ENVI Liabilities shall not include (a) any ENVI Expenses, (b) the Trust Satisfied Obligations to the extent such obligations will be satisfied from the Trust Account, or (c) any Company Expenses or any fees, expenses, commissions or other amounts that are expressly contemplated to be allocated to and paid by to the Company or any Company Equityholder pursuant to this Agreement or any Ancillary Document.
ENVI Material Adverse Effect means any change, event, effect or occurrence that, individually or in the aggregate with any other change, event, effect or occurrence, has had or would reasonably be expected to have a material adverse effect on (a) the business of ENVI, results of operations or financial condition of the ENVI Parties, taken as a whole, or (b) the ability of any ENVI Party to consummate the Merger, in each case, in accordance with the terms of this Agreement; provided, however, that, in the case of clause (a), none of the following shall be taken into account in determining whether an ENVI Material Adverse Effect has occurred or would reasonably be expected to occur: any adverse change, event, effect or occurrence arising after the date of this Agreement from or related to (i) general business or economic conditions in or affecting the United States, or changes therein, or the global economy generally, (ii) any national or international political or social conditions in the United States or any other country, including the engagement by the United States or any other country in hostilities, whether or not pursuant to the
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declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism, (iii) changes in conditions of the financial, banking, capital or securities markets generally in the United States or any other country or region in the world, or changes therein, including changes in interest rates in the United States or any other country and changes in exchange rates for the currencies of any countries, (iv) changes in any applicable Laws or accounting standards (including legally binding interpretations thereof), (v) any change, event, effect or occurrence that is generally applicable to the industries or markets in which any ENVI Party operates, (vi) the execution or public announcement of this Agreement or the pendency or consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships, contractual or otherwise, of any ENVI Party with investors, contractors, lenders, suppliers, vendors, partners, licensors, licensees, payors or other third parties related thereto (provided that the exception in this clause (vi) shall not apply to the representations and warranties set forth in Section 4.3(b) to the extent that its purpose is to address the consequences resulting from the public announcement or pendency or the consummation of the transactions contemplated hereby or the condition set forth in Section 6.3(a) to the extent it relates to such representations and warranties), (vii) any failure by any ENVI Party to meet, or changes to, any internal or published budgets, projections, forecasts, estimates or predictions (although the underlying facts and circumstances resulting in such failure may be taken into account to the extent not otherwise excluded from this definition pursuant to clauses (i) through (vi) or (viii)), or (viii) any hurricane, tornado, flood, earthquake, tsunami, natural disaster, mudslides, wild fires, epidemics, pandemics (including COVID-19) or quarantines, acts of God or other natural disasters or comparable events in the United States or any other country or region in the world, or any escalation of the foregoing; provided, however, that any change, event, effect or occurrence resulting from a matter described in any of the foregoing clauses (i) through (v), or (viii) may be taken into account in determining whether an ENVI Material Adverse Effect has occurred or would reasonably be expected to occur to the extent such change, event, effect or occurrence has or has had a disproportionate adverse effect on the ENVI Parties, taken as a whole, relative to other Special Purpose Acquisition Companies operating in the industries in which the ENVI Parties operate.
ENVI Material Contract has the meaning set forth in Section 4.9(b).
ENVI Parties means, collectively, ENVI and Merger Sub.
ENVI Required Shareholder Approval means the approval of the Business Combination Proposal, the Nasdaq Proposal, the Required Governing Document Proposal, the Incentive Equity Plan Proposal and the Employee Stock Purchase Plan Proposal by the affirmative vote of the requisite percentage of holders of ENVI Common Stock entitled to vote thereon, whether in person or by proxy at the ENVI Shareholders Meeting (or any adjournment thereof), under and in accordance with the Governing Documents of ENVI and applicable Law.
ENVI SEC Reports has the meaning set forth in Section 4.7.
ENVI Share Value means $10.00.
ENVI Shareholder Approval means, collectively, the ENVI Required Shareholder Approval and the Other ENVI Shareholder Approval.
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ENVI Shareholder Redemption means the right of the holders of ENVI Class A Shares to redeem all or a portion of their ENVI Class A Shares (in connection with the transactions contemplated by this Agreement or otherwise) as set forth in Governing Documents of ENVI.
ENVI Shareholders Meeting has the meaning set forth in Section 5.9.
ENVI Shares means (a) collectively, the ENVI Class A Shares and the ENVI Class B Shares, (b) undesignated preferred shares and (c) shares of common stock, par value $0.0001 per share, of ENVI as contemplated pursuant to the ENVI Certificate of Incorporation. Any reference to the ENVI Shares in this Agreement or any Ancillary Document shall be deemed to refer to clause (a), (b) and/or clause (c) of this definition, as the context so requires.
ENVI Sponsor has the meaning set forth in the recitals to this Agreement.
ENVI Sponsor Specified Provisions has the meaning set forth in Section 8.9.
Environmental Laws means all Laws and Orders concerning pollution, protection of the environment or natural resources, or human health or safety (as related to exposure to Hazardous Substances), including those relating to pesticide application, surface or groundwater, drinking water supply, indoor or ambient air, endangered or threatened species, or the use, handling, transportation, treatment, storage, disposal, Release or threat of Release, or investigation or remediation of Hazardous Substances.
ENVI Warrant means any warrant to purchase shares of ENVI Common Stock issued by ENVI.
ENVI Warrant Agreement means that certain Warrant Agreement by and between ENVI and Continental Stock Transfer & Trust Company (in its capacity as the warrant agent), dated January 13, 2021, and any amendments thereto.
ENVI Warrant Price means the price per share at which ENVI Common Stock may be purchased upon exercise of any ENVI Warrant.
Equity Securities means any share, share capital, capital stock, partnership, membership, joint venture or similar interest in any Person (including any stock appreciation, phantom stock, profit participation or similar rights), and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.
Equity Value means $1,200,000,000.
ERISA means the Employee Retirement Income Security Act of 1974.
Exchange Act means the Securities Exchange Act of 1934.
Exchange Agent has the meaning set forth in Section 2.5(a).
Exchange Agent Agreement has the meaning set forth in Section 2.5(a).
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Exchange Fund has the meaning set forth in Section 2.5(c).
Exchange Ratio means the quotient obtained by dividing (a) the Transaction Share Consideration, by (b) the number of Fully-Diluted Shares.
FDA means the U.S. Food and Drug Administration.
Federal Securities Laws means the Exchange Act, the Securities Act and the other U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise.
Financial Statements has the meaning set forth in Section 3.4(a).
Foreign Benefit Plan means an Employee Benefit Plan maintained for employees, officers, directors or other individual service providers located outside of the United States.
Fraud means an act or omission by a Party, and requires: (a) a false or incorrect representation or warranty expressly set forth in this Agreement, (b) with actual knowledge (as opposed to constructive, imputed or implied knowledge) by the Party making such representation or warranty that such representation or warranty expressly set forth in this Agreement is false or incorrect, (c) an intention to deceive another Party, to induce him, her or it to enter into this Agreement, (d) another Party, in justifiable or reasonable reliance upon such false or incorrect representation or warranty expressly set forth in this Agreement, causing such Party to enter into this Agreement, and (e) another Party to suffer damage by reason of such reliance. For the avoidance of doubt, Fraud does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud or any torts (including a claim for fraud or alleged fraud) based on negligence or recklessness.
Fully-Diluted Shares means an amount equal to, without duplication, (a) the aggregate number of Company Shares and any other shares of capital stock of the Company that are issued and outstanding as of immediately prior to the Effective Time calculated on an as converted to Company Common Shares basis in accordance with the Company Certificate of Incorporation, plus (b) the aggregate number of shares of Company Common Shares issuable upon the full exercise, exchange or conversion of Company Options that are outstanding as of immediately prior to the Effective Time, plus (c) the aggregate number of shares of Company Common Shares issuable upon the full exercise of Company Warrants that are outstanding as of immediately prior to the Effective Time, in each case of clauses (b) and (c), determined on a net exercise basis.
GAAP means United States generally accepted accounting principles.
Governing Documents means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the Governing Documents of a U.S. corporation are its certificate or articles of incorporation and bylaws, the Governing Documents of a U.S. limited partnership are its limited partnership agreement and certificate of limited partnership and the Governing Documents of a U.S. limited liability company are its operating or limited liability company agreement and certificate of formation.
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Governmental Entity means any U.S. or non-U.S. (a) federal, state, local, municipal or other government, (b) governmental or quasi-governmental entity of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal) or (c) body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature, including any arbitral tribunal of competent jurisdiction (public or private).
GPR Notes means the convertible promissory notes issued pursuant to that certain Convertible Note Purchase Agreement dated as of April 9, 2020 by and between a Subsidiary of the Company and the other parties thereto, as amended to date.
Group Company and Group Companies means, collectively, the Company and its Subsidiaries.
Hazardous Substance means any hazardous, toxic, explosive or radioactive material, substance or waste or other pollutant that is regulated by, or may give rise to standards of conduct or Liability pursuant to, any Environmental Law, including any petroleum products or byproducts, asbestos, lead, polychlorinated biphenyls, per- and poly-fluoroakyl substances, or radon.
HB Strategies means HB Strategies, LLC.
HSR Act means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
Incentive Equity Plan Proposal has the meaning set forth in Section 5.9.
Incentive Stock Option means a Company Option intended to be an incentive stock option (as defined in Section 422 of the Code).
Indebtedness means, as of any time, without duplication, with respect to any Person, the outstanding principal amount of, accrued and unpaid interest on, fees and expenses arising under or in respect of (a) indebtedness for borrowed money, (b) other obligations evidenced by any note, bond, debenture or other debt security, (c) obligations for the deferred purchase price of property or assets, including earn-outs and seller notes (but excluding any trade payables arising in the ordinary course of business), (d) reimbursement and other obligations with respect to letters of credit, bank guarantees, bankers acceptances or other similar instruments, in each case, solely to the extent drawn, (e) leases required to be capitalized under GAAP, (f) derivative, hedging, swap, foreign exchange or similar arrangements, including swaps, caps, collars, hedges or similar arrangements, and (g) any of the obligations of any other Person of the type referred to in clauses (a) through (f) above directly or indirectly guaranteed by such Person or secured by any assets of such Person, whether or not such Indebtedness has been assumed by such Person. For avoidance of doubt, Indebtedness shall not include Taxes.
Intellectual Property Rights means all intellectual property rights and related priority rights protected, created or arising under the Laws of the U.S. or any other jurisdiction or under any international convention, including all (a) patents and patent applications, industrial designs and design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and statutory invention registrations, and any patents issuing on any of
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the foregoing and any reissues, reexaminations, substitutes, supplementary protection certificates, extensions of any of the foregoing (collectively, Patents); (b) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, rights in Internet domain names, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing (collectively, Marks); (c) copyrights and other rights in works of authorship, database and design rights, mask work rights and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of any of any of the foregoing (collectively, Copyrights); (d) rights in trade secrets, know-how and confidential and proprietary information, including invention disclosures, inventions and formulae, whether patentable or not; (e) rights in or to Software or other technology; and (f) any other intellectual or proprietary rights protectable, arising under or associated with any of the foregoing, including those protected by any Law anywhere in the world.
Intended Tax Treatment has the meaning set forth in the recitals to this Agreement.
Investment Company Act means the Investment Company Act of 1940.
Investor Rights Agreement has the meaning set forth in the recitals to this Agreement.
IPO has the meaning set forth in Section 4.16(c).
JOBS Act means the Jumpstart Our Business Startups Act of 2012.
Latest Balance Sheet has the meaning set forth in Section 3.4(a).
Latest ENVI Balance Sheet has the meaning set forth in Section 4.17.
Law means any federal, state, local, foreign, national or supranational statute, law (including common law), act, statute, ordinance, treaty, rule, code, regulation or other legally binding directive issued, promulgated or enforced by a Governmental Entity having jurisdiction over a given matter.
Leased Real Property has the meaning set forth in Section 3.18(b).
Letter of Transmittal means the letter of transmittal, substantially in the form attached as Exhibit E hereto and with such modifications, amendments or supplements as may be requested by the Exchange Agent and mutually agreed to by each of ENVI and the Company (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or ENVI, as applicable).
Liability or liability means any and all debts, liabilities and obligations, whether accrued, unaccrued, liquidated or unliquidated, fixed, absolute or contingent, known or unknown, matured or unmatured or determined or determinable, including those arising under any Law (including any Environmental Law), Proceeding or Order and those arising under any Contract, agreement, arrangement, commitment or undertaking.
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Lien means any mortgage, pledge, security interest, encumbrance, lien, license or sub-license, charge, or other similar encumbrance or interest (including, in the case of any Equity Securities, any voting, transfer or similar restrictions).
Marks has the meaning set forth in the definition of Intellectual Property Rights.
Material Contracts has the meaning set forth in Section 3.7(a).
Material Permits has the meaning set forth in Section 3.6.
Material Supplier has the meaning set forth in Section 3.24.
Merger has the meaning set forth in Section 2.1.
Merger Sub has the meaning set forth in the introductory paragraph to this Agreement.
Multiemployer Plan has the meaning set forth in Section (3)37 or Section 4001(a)(3) of ERISA.
Nasdaq means the Nasdaq Capital Market.
Nasdaq Proposal has the meaning set forth in Section 5.9.
Non-Scheduled Contracts has the meaning set forth in Section 3.13(c).
Off-the-Shelf Software means any Software that is made generally available on a commercial basis (including technology offered on a Software as a service (SaaS), Platform as a Service (PaaS), or Infrastructure as a Service (IaaS) or similar basis and Software available through retail stores, distribution networks or that is pre-installed as a standard part of hardware) and is licensed to any of the Group Companies on a non-exclusive basis under standard terms and conditions for a one-time license fee of less than $50,000 per license or an ongoing license fee of less than $100,000 per year.
Officers has the meaning set forth in Section 5.18(a).
Order means any outstanding writ, order, judgment, injunction, settlement, decision, determination, award, ruling, subpoena, verdict or decree entered, issued or rendered by any Governmental Entity.
Other Class B Shareholders means, collectively, HB Strategies, David Brewster, Dean Seavers and Deval L. Patrick.
Other Closing Company Financial Statements has the meaning set forth in Section 5.19(a).
Other ENVI Shareholder Approval means the approval of each Other Transaction Proposal by the affirmative vote of the holders of the requisite number of ENVI Shares entitled to vote thereon, whether in person or by proxy at the ENVI Shareholders Meeting (or any adjournment thereof), in accordance with the Governing Documents of ENVI and applicable Law.
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Other Transaction Proposal means each Transaction Proposal, other than the Required Transaction Proposals.
Pandemic Measures means any shelter-in-place, stay at home, workforce reduction, furlough, employee time off, employee leave, social distancing, shut down, closure, sequester, business or workplace reopening, or other conditions, restrictions or requirements pursuant to any Law, Order or directive of or by any Governmental Entity, the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration or the Equal Employment Opportunity Commission, in connection with or in response to COVID-19.
Parties has the meaning set forth in the introductory paragraph to this Agreement.
Patents has the meaning set forth in the definition of Intellectual Property Rights.
PCAOB means the Public Company Accounting Oversight Board.
Per Share Merger Consideration has the meaning set forth in Section 2.1(g).
Permits means any approvals, authorizations, clearances, business licenses, registrations, permits or certificates issued or approved by a Governmental Entity.
Permitted Liens means (a) mechanics, materialmens, carriers, repairers and other similar statutory Liens arising or incurred in the ordinary course of business for amounts that are not yet delinquent or are being contested in good faith by appropriate Proceedings and for which sufficient reserves have been established in accordance with GAAP, (b) Liens for Taxes, assessments or other governmental charges not yet due and payable or which are being contested in good faith by appropriate Proceedings and for which sufficient reserves have been established in accordance with GAAP that are disclosed in the Financial Statements, (c) encumbrances and restrictions on real property (including easements, covenants, conditions, rights of way and similar restrictions) that do not prohibit or materially interfere with any of the Group Companies use or occupancy of such real property, (d) zoning, building codes and other land use Laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such real property and which are not violated by the use or occupancy of such real property or the operation of the businesses of the Group Company and do not prohibit or materially interfere with any of the Group Companies use or occupancy of such real property, (e) cash deposits or cash pledges to secure the payment of workers compensation, unemployment insurance, social security benefits or obligations arising under similar Laws or to secure the performance of public or statutory obligations, surety or appeal bonds, and other obligations of a like nature, in each case, in the ordinary course of business and which are not yet due and payable, (f) grants by any Group Company of non-exclusive rights in Intellectual Property Rights in the ordinary course of business and (g) other Liens that do not materially and adversely affect the value, use or operation of the asset subject thereto.
Person or Persons means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture or other similar entity, whether or not a legal entity.
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Personal Data means any data or information that (a) can, alone or when combined with other information maintained for or on behalf of the Company, identify a natural person, or (b) is otherwise subject to applicable Laws or any privacy policies of the Company governing personal information.
PIPE Financing has the meaning set forth in the recitals to this Agreement.
PIPE Financing Amount has the meaning set forth in the recitals to this Agreement.
PIPE Investors has the meaning set forth in the recitals to this Agreement.
PIPE Subscription Agreements has the meaning set forth in the recitals to this Agreement.
Pre-Closing Actions has the meaning set forth in Section 5.25.
Pre-Closing ENVI Shareholders means the holders of ENVI Shares as of immediately prior to the Effective Time.
Privacy and Data Security Policies has the meaning set forth in Section 3.20(a).
Privacy Commitments has the meaning set forth in Section 3.20(a).
Privacy Laws means Laws relating to the Processing or protection of Personal Data that apply to the Group Companies, including Laws regarding data privacy and information security; data breach notification; consumer protection; requirements for website and mobile application privacy policies and practices; social security numbers; email, text message or telephone communications; and/or payment card information.
Proceeding means any lawsuit, litigation, action, audit, examination, investigation, claim, complaint, charge, proceeding, suit or arbitration (in each case, whether civil, criminal or administrative and whether public or private) pending by or before or otherwise involving any Governmental Entity.
Process (or Processing or Processes) means the collection, use, storage, processing, recording, distribution, transfer, import, export, protection (including security measures), disposal or disclosure or other activity regarding data (whether electronically or in any other form or medium).
Prospectus has the meaning set forth in Section 8.18.
Proxy Statement / Prospectus has the meaning set forth in Section 5.8.
Public Health Laws means all applicable Laws relating to the development, pre-clinical testing, clinical testing, manufacture, production, analysis, distribution, importation, exportation, use, handling, quality, sale or promotion of any drug, biologic or medical device (including any ingredient or component of the foregoing products) intended for any medical or clinical use subject
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to regulation under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) or similar federal, state or foreign Laws.
Public Shareholders has the meaning set forth in Section 8.18.
Public Software means any software that contains, includes, incorporates, or has instantiated therein, or is derived in any manner (in whole or in part) from, any Software that is distributed as free Software, open source Software (e.g., Linux) or similar licensing or distribution models, including under any terms or conditions that impose any requirement that any Software using, linked with, incorporating, distributed with or derived from such Public Software (a) be made available or distributed in source code form; (b) be licensed for purposes of making derivative works; or (c) be redistributable at no, or a nominal, charge.
Real Property Leases means all leases, sub-leases, licenses, concessions or other agreements, in each case, pursuant to which any Group Company leases or sub-leases any real property.
Registered Intellectual Property means all issued Patents, pending Patent applications, registered Marks, pending applications for registration of Marks, registered Copyrights, pending applications for registration of Copyrights and Internet domain name registrations.
Registration Statement / Proxy Statement means a registration statement on Form S-4 relating to the transactions contemplated by this Agreement and the Ancillary Documents and containing a prospectus and proxy statement of ENVI.
Regulatory Permits means all Permits granted by FDA or any comparable Governmental Entity to any Group Company, including investigational new drug applications, new drug applications, abbreviated new drug applications, medical device or in vitro diagnostic premarket approval applications, medical device or in vitro diagnostic premarket clearances (e.g., 510(k) clearances), investigational device exemptions, and other comparable national or foreign manufacturing approvals and authorizations.
Release means, with respect to any Hazardous Substance, any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, migrating, escaping, dumping or disposing into, through, upon, or beneath the indoor or outdoor environment (including the ambient air, soil, surface and sub-surface strata, surface water, and groundwater), including the movement of Hazardous Substances through or in the air, soil, surface water, groundwater or land, but not including Hazardous Substances fully encapsulated in construction materials in indoor spaces and not Released to or posing a threat of Release to the ambient environment (including the indoor or ambient air, soil, surface and sub-surface strata, surface water, and groundwater) or any risk to human health.
Representatives means, with respect to any Person, such Persons and such Persons Affiliates respective directors, managers, general partners, officers, employees, accountants, consultants, advisors, attorneys, agents and other representatives.
Required Governing Document Proposal has the meaning set forth in Section 5.9.
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Required Transaction Proposals means, collectively, the Business Combination Proposal, the Nasdaq Proposal, the Required Governing Document Proposal, the Incentive Equity Plan Proposal and the Employee Stock Purchase Plan Proposal.
Rollover Option has the meaning set forth in Section 2.4(a).
Sanctions and Export Control Laws means any Law or Order related to (a) import and export controls, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations such other controls administered by the U.S. Customs and Border Protection, (b) economic sanctions, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the European Union, any European Union Member State, and the United Nations or (c) anti-boycott measures.
Sarbanes-Oxley Act means the Sarbanes-Oxley Act of 2002.
Schedules means, collectively, the Company Disclosure Schedules and the ENVI Disclosure Schedules.
SEC means the U.S. Securities and Exchange Commission.
Securities Act means the U.S. Securities Act of 1933.
Securities Laws means Federal Securities Laws and other applicable foreign and domestic securities or similar Laws.
Security Incident has the meaning set forth in Section 3.20(d).
Signing Filing has the meaning set forth in Section 5.4(b).
Signing Press Release has the meaning set forth in Section 5.4(b).
Software shall mean any and all (a) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (c) descriptions, flowcharts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (d) all documentation, including user manuals and other training documentation, related to any of the foregoing.
Sponsor Letter Agreement has the meaning set forth in the recitals to this Agreement.
Subscription Amount has the meaning set forth in the PIPE Subscription Agreements.
Subsidiary means, with respect to any Person, any corporation, limited liability company, partnership or other legal entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination
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thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entitys gains or losses or shall be a, or control any, managing director or general partner of such business entity (other than a corporation). The term Subsidiary shall include all Subsidiaries of such Subsidiary.
Supporting Company Shareholders has the meaning set forth in the recitals to this Agreement.
Surviving Company has the meaning set forth in Section 2.1(a).
Surviving Company Share has the meaning set forth in Section 2.1(f).
Tax means any U.S. federal, state, local or non-U.S. income, gross receipts, franchise, estimated, alternative minimum, sales, use, transfer, value added, excise, stamp, customs, duties, ad valorem, real property, personal property (tangible and intangible), capital stock, social security, unemployment, payroll, wage, employment, severance, occupation, registration, environmental, communication, mortgage, profits, license, lease, service, goods and services, withholding, premium, unclaimed property, escheat, windfall profits or other taxes of any kind whatsoever, whether computed on a separate or combined, unitary or consolidated basis, together with any interest, deficiencies, penalties, fees, additions to tax, or additional amounts imposed by any Governmental Entity with respect thereto.
Tax Authority means any Governmental Entity responsible for the collection or administration of, or having jurisdiction with respect to, Taxes or Tax Returns.
Tax Proceeding means any audit, claim, assessment or other legal action or Proceeding in respect of Taxes, in each case, by or before any Tax Authority.
Tax Return means (i) any return, information return, statement, declaration, claim for refund, schedule, and report relating to Taxes filed or required to be filed with any Tax Authority, including any attachment to or amendment of any of the foregoing and (ii) TD F 90-22.1 (and its successor form, FinCEN Form 114 or any successor form thereto).
Termination Date has the meaning set forth in Section 7.1(d).
Transaction Litigation has the meaning set forth in Section 5.2(d).
Transaction Proposals has the meaning set forth in Section 5.9.
Transaction Share Consideration means 120,000,000 shares of ENVI Class A Shares.
Transaction Support Agreements has the meaning set forth in the recitals to this Agreement.
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Transfer Taxes has the meaning set forth in Section 5.5(c).
Trust Account has the meaning set forth in Section 8.18.
Trust Account Released Claims has the meaning set forth in Section 8.18.
Trust Agreement has the meaning set forth in Section 4.11.
Trustee has the meaning set forth in Section 4.11.
Unpaid Company Expenses means the Company Expenses calculated as of immediately prior to the Closing, in each case, to the extent unpaid as of such time.
Unpaid ENVI Expenses means the ENVI Expenses calculated as of immediately prior to the Closing, in each case, to the extent unpaid as of such time.
Unpaid ENVI Liabilities means the ENVI Liabilities calculated as of immediately prior to the Closing, in each case, to the extent unpaid as of such time.
Unvested Company Option means each Company Option outstanding as of immediately prior to the Effective Time that is not a Vested Company Option.
Vested Company Option means each Company Option outstanding as of immediately prior to the Effective Time that is vested as of such time or will vest in connection with the consummation of the transactions contemplated hereby (whether at the Effective Time or otherwise).
WARN means the Worker Adjustment Retraining and Notification Act of 1988, as well as similar foreign, state or local Laws.
Willful Breach means a material breach of this Agreement by a Party that is a consequence of an act undertaken or a failure to act by the breaching Party with the knowledge that the taking of such act or such failure to act would, or would reasonably be expected to, constitute or result in a breach of this Agreement.
Year End Financial Statements has the meaning set forth in Section 3.4(a).
ARTICLE 2
MERGER
Section 2.1 The Merger.
(a) On the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, on the Closing Date, Merger Sub shall merge with and into the Company (the Merger). As a result of the Merger, the separate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation of the Merger (the Surviving Company).
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(b) At the Closing, the Parties shall cause the Merger to be consummated by filing with the Secretary of State of the State of Delaware a certificate of merger, in a form reasonably satisfactory to the Company and ENVI (the Certificate of Merger), to be executed and filed with the Secretary of State of the State of Delaware. The Merger shall become effective on the date and at the time at which the Certificate of Merger is accepted for filing by the Secretary of State of the State of Delaware or at such later date and/or time as is agreed by ENVI and the Company and specified in the Certificate of Merger (the time the Merger becomes effective being referred to herein as the Effective Time).
(c) The Merger shall have the effects set forth in Section 259 of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the assets, properties, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company and all debts, liabilities, obligations, restrictions, disabilities and duties of each of the Company and Merger Sub shall become the debts, liabilities, obligations and duties of the Surviving Company, in each case, in accordance with the DGCL.
(d) At the Effective Time, (i) each ENVI Class A Share and each ENVI Class B Share that is issued and outstanding immediately prior to the Merger shall become one share of common stock, $0.0001 par value per share, of ENVI and (ii) the Governing Documents of Merger Sub shall be adopted as the Governing Documents of the Surviving Company, in each case, until thereafter changed or amended as provided therein or by applicable Law.
(e) At the Effective Time, the directors and officers of the Company immediately prior to the Effective Time shall be the initial directors and officers of the Surviving Company, each to hold office in accordance with the Governing Documents of the Surviving Company until such directors or officers successor is duly elected or appointed and qualified, or until their earlier death, resignation or removal.
(f) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each share of capital stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be automatically cancelled and extinguished and converted into one share of common stock, par value $0.0001, of the Surviving Company (each such share, a Surviving Company Share).
(g) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each Company Share (other than the Company Shares cancelled and extinguished pursuant to Section 2.1(j) and any Company Dissenting Shares) issued and outstanding as of immediately prior to the Effective Time shall be automatically cancelled and extinguished and converted into the right to receive a number of ENVI Class A Shares equal to the product of (x) the Conversion Ratio applicable to such Company Share multiplied by (y) the Exchange Ratio (the Per Share Merger Consideration). From and after the Effective Time, each Company Shareholders certificates (the Certificates), if any, evidencing ownership of the Company Shares and the Company Shares held in book-entry form issued and outstanding immediately prior to the Effective Time shall each cease to have any rights with respect to such Company Shares except as otherwise expressly provided for herein or under applicable Law. Prior to the Effective Time, ENVI shall cause all ENVI Class A Shares issued in the Merger and the PIPE Financing to constitute duly authorized, validly issued, fully paid and non-assessable ENVI
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Class A Shares. ENVI Common Stock issued in respect of Company Restricted Shares shall be subject to the same terms and conditions (including applicable vesting and forfeiture provisions) that applied to the corresponding Company Restricted Share immediately prior to the Effective Time.
(h) For purposes of calculating the aggregate number of ENVI Class A Shares issuable to each holder of Company Shares pursuant to the terms of Section 2.1(g), all Company Shares held by such holder shall be aggregated by class, and the applicable Conversion Ratio and the Exchange Ratio shall be applied to that aggregate number of shares of such class held by such holder, and not on a share-by-share basis and, after adding the resulting amounts for all classes (including all fractional shares otherwise issuance to such holder upon conversion of Company Shares of each class), the aggregate number of ENVI Class A Shares to be issued shall be rounded down to the nearest whole share.
(i) If, between the date of this Agreement and the Closing, the outstanding ENVI Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, then any number or value (including dollar value) or amount contained herein which is based upon the number of ENVI Shares will be appropriately adjusted to provide to the holders of Company Shares the same economic effect as contemplated by this Agreement; provided, however, that this Section 2.1(i) shall not (A) be construed to permit ENVI, Merger Sub or the Company to take any action with respect to their respective securities that is prohibited by the terms and conditions of this Agreement, or (B) apply to any other transactions expressly contemplated by this Agreement or any Ancillary Document to the extent consummated in accordance with the terms contemplated by this Agreement and/or such Ancillary Document, as applicable.
(j) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each Company Share held immediately prior to the Effective Time by the Company as treasury stock shall be automatically cancelled and extinguished, and no consideration shall be paid with respect thereto.
Section 2.2 Closing of the Transactions Contemplated by this Agreement. The closing of the transactions contemplated by this Agreement (the Closing) shall take place electronically by exchange of the closing deliverables by the means provided in Section 8.11 as promptly as reasonably practicable, but in no event later than the third (3rd) Business Day, following the satisfaction (or, to the extent permitted by applicable Law, waiver) of the conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions) (the date upon which the Closing actually occurs is referred to herein as the Closing Date) or at such other place, date and/or time as ENVI and the Company may agree in writing. ENVI shall be renamed GreenLight Biosciences, Inc. and shall continue to trade publicly on Nasdaq under a new ticker symbol selected by the Company.
Section 2.3 Allocation Schedule; Aggregate Transaction Proceeds Schedule.
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(a) Allocation Schedule. At least two (2) Business Days prior to the Closing Date, the Company shall deliver to ENVI an allocation schedule (the Allocation Schedule) setting forth, as of three (3) Business Days prior to the Closing Date, (i) the number of Company Shares held by each Company Shareholder and, for each class so held, the applicable Conversion Ratio thereof, (ii) the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be a Vested Company Option or an Unvested Company Option as of immediately prior to the Effective Time, (iii) the number of Company Shares subject to the Assumed Warrants, (iv) in the case of the Company Options or Assumed Warrants, the exercise price thereof as of immediately prior to the Effective Time, (v) the portion of the Transaction Share Consideration allocated to each Company Option pursuant to Section 2.4(b) and the portion of the Transaction Share Consideration allocated to each Company Share pursuant to Section 2.1(g) (as well as, in each case, reasonably detailed calculations with respect to the components and subcomponents thereof (including the Exchange Ratio and the Conversion Ratios (by class of capital stock of the Company))), and (vi) a certification, duly executed by an authorized officer of the Company, that, to their knowledge and solely in their capacity as an officer of the Company (and without any personal liability), the information and calculations delivered pursuant to clauses (i), (ii), (iii) and (iv) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects and (B) in accordance with the Allocation Schedule Principles. The Allocation Schedule (and the calculations and determinations contained therein) will be prepared in accordance with the applicable provisions of this Agreement, the Governing Documents of the Company, the Company Shareholders Agreement and applicable Laws and, in the case of the Company Options, in accordance with the Company Equity Plan and any applicable grant or similar agreement with respect to each Company Option, and, in the case of the Company Warrants, in accordance with the terms and conditions of the respective Company Warrants (collectively, the Allocation Schedule Principles). The Company will review any comments to the Allocation Schedule provided by ENVI or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by ENVI or any of its Representatives. Notwithstanding the foregoing or anything to the contrary herein, (x) in no event shall the aggregate number of ENVI Class A Shares set forth on the Allocation Schedule that are allocated in respect of the Equity Securities of the Company (or, for the avoidance of doubt, the Company Equityholders) exceed the Transaction Share Consideration and (y) the ENVI Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or the Exchange Agent Agreement, as applicable.
(b) Aggregate Transaction Proceeds Schedule. At least two (2) Business Days prior to the Closing Date, ENVI shall deliver to the Company a reasonably detailed calculation of the Aggregate Transaction Proceeds (the Aggregate Transaction Proceeds Schedule), including each subcomponent thereof, and reasonably detailed supporting documentation and a certification, duly executed by an authorized officer of ENVI, that, to their knowledge and solely in their capacity as an officer of ENVI (and without any personal liability), the information and calculations in the Aggregate Transaction Proceeds Schedule is, and will be as of immediately prior to the Effective Time, (i) to their knowledge, true and correct in all respects, and (ii) in accordance with the applicable provisions of this Agreement. ENVI will review any comments to the Aggregate Transaction Proceeds Schedule provided by the Company or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by
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the Company or any of its Representatives. ENVI may update the Aggregate Transaction Proceeds Schedule if any of the calculations or amounts shown therein are incorrect as a result of changes in the number of ENVI shareholders participating in the ENVI Shareholder Redemption, not later than one (1) Business Day prior to the Closing Date.
Section 2.4 Treatment of Company Options and Company Warrants.
(a) At the Effective Time, by virtue of the Merger and without any action of any Party or any other Person (but subject to, in the case of the Company, Section 2.4(e)), each Company Option (whether a Vested Company Option or an Unvested Company Option) that is outstanding and unexercised as of immediately prior to Effective Time shall be converted into an option issued under the ENVI Incentive Equity Plan to purchase a number of ENVI Shares (such option, a Rollover Option) equal to the product (rounded down to the nearest whole number) of (x) the number of Company Common Shares subject to such Company Option immediately prior to the Effective Time, multiplied by (y) the Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (i) the exercise price per share of such Company Option immediately prior to the Effective Time, divided by (ii) the Exchange Ratio; provided, however, that such conversion shall occur in a manner intended to comply with (A) the requirements of Section 409A of the Code and (B) in the case of any Rollover Option that is an Incentive Stock Option, the requirements of Section 424 of the Code. Each Rollover Option shall be subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Company Option immediately prior to the Effective Time, except (I) as provided above in this Section 2.4(a), or (II) as to (1) terms rendered inoperative by reason of the transactions contemplated by this Agreement (including any anti-dilution or other similar provisions that may have adjusted or may adjust the number of underlying shares that are subject to any such option until the Effective Time), or (2) such other immaterial administrative or ministerial changes as the ENVI Board (or the compensation committee of the ENVI Board) may determine in good faith are appropriate to effectuate the administration of the Rollover Options.
(b) At the Effective Time, each Company Warrant, to the extent outstanding and unexercised, shall automatically, without any action of any Party or any other Person (including the holder thereof), be assumed by ENVI and converted into a warrant to acquire a number of ENVI Class A Shares equal to the product (rounded down to the nearest whole number) of (x) the number of Company Common Shares (on an as converted basis) subject to such Company Warrant immediately prior to the Effective Time, multiplied by (y) the Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (i) the exercise price per share of such Company Warrant immediately prior to the Effective Time, divided by (ii) the Exchange Ratio (each such resulting warrant, an Assumed Warrant).
(c) Each Assumed Warrant shall be subject to the same terms and conditions as were applicable to such corresponding Company Warrant immediately prior to the Effective Time (including vesting conditions, if any), except for terms rendered inoperative by reason of the transactions contemplated by this Agreement (including any anti-dilution or other similar provisions that may have adjusted or may adjust the number of underlying shares that are subject to such Assumed Warrant until the Effective Time).
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(d) As of the Effective Time, all Company Equity Plans shall terminate, and all Company Options (whether vested or unvested) shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder thereof shall cease to have any rights with respect thereto or under the Company Equity Plan, except as otherwise expressly provided for in this Section 2.4.
(e) At or prior to the Effective Time, the Parties and their respective boards of directors, as applicable, shall adopt any resolutions and take any actions that are reasonably necessary to effectuate the treatment of the Company Options and Company Warrants pursuant to this Section 2.4. Prior to the Closing, the Company shall take, or cause to be taken, all other reasonably necessary or appropriate actions under the Company Equity Plans, under the underlying grant, award or similar agreement and otherwise to give effect to the provisions of this Section 2.4.
Section 2.5 Company Shareholder Deliverables.
(a) As promptly as reasonably practicable following the date of this Agreement, but in no event later than ten (10) Business Days prior to the Closing Date, ENVI shall appoint an exchange agent reasonably acceptable to the Company (the Exchange Agent) (it being understood and agreed, for the avoidance of doubt, that Continental Stock Transfer & Trust Company (or any of its Affiliates) shall be deemed to be acceptable to the Company) and enter into an exchange agent agreement with the Exchange Agent (the Exchange Agent Agreement) for the purpose of exchanging Certificates, if any, representing the Company Shares and each Company Share held in book-entry form on the stock transfer books of the Company immediately prior to the Effective Time, in either case, for the portion of the Transaction Share Consideration issuable in respect of such Company Shares pursuant to Section 2.1(g) and on the terms and subject to the other conditions set forth in this Agreement. The Company shall reasonably cooperate with ENVI and the Exchange Agent in connection with the appointment of the Exchange Agent, the entry into the Exchange Agent Agreement and the covenants and agreements set forth in this Section 2.5 (including the provision of any information, or the entry into any agreements or documentation, necessary or advisable in connection with any of the foregoing or otherwise required by the Exchange Agent Agreement for the Exchange Agent to fulfill its duties as the Exchange Agent in connection with the transactions contemplated hereby).
(b) At least three (3) Business Days prior to the Closing Date, the Company shall mail or otherwise deliver, or shall cause to be mailed or otherwise delivered, to the Company Shareholders a Letter of Transmittal.
(c) At the Effective Time, ENVI shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the Company Shareholders and for exchange in accordance with this Section 2.5 through the Exchange Agent, evidence of ENVI Shares in book-entry form representing the portion of the Transaction Share Consideration issuable pursuant to Section 2.1(g) in exchange for the Company Shares outstanding immediately prior to the Effective Time. All shares in book-entry form representing the portion of the Transaction Share Consideration issuable pursuant to Section 2.1(g) deposited with the Exchange Agent shall be referred to in this Agreement as the Exchange Fund.
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(d) Each Company Shareholder whose Company Shares have been converted into the right to receive a portion of the Transaction Share Consideration pursuant Section 2.1(g) shall be entitled to receive the portion of the Transaction Share Consideration to which he, she or it is entitled on the date provided in Section 2.5(e) upon (i) surrender of a Certificate (or affidavit of loss in lieu thereof in the form required by the Letter of Transmittal), together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal), to the Exchange Agent or (ii) delivery of an agents message in the case of Company Shares held in book-entry form, together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal), to the Exchange Agent.
(e) If a properly completed and duly executed Letter of Transmittal, together with any Certificates (or affidavit of loss in lieu thereof in the form required by the Letter of Transmittal) or an agents message, as applicable, and any other documents or agreements required by the Letter of Transmittal, are delivered to the Exchange Agent in accordance with Section 2.5(d) (i) at least two Business Days prior to the Closing Date, then ENVI and the Company shall use commercially reasonable efforts to cause the applicable portion of the Transaction Share Consideration to be issued to the applicable Company Shareholder in book-entry form as soon as practicable on or after the Closing Date, or (ii) less than two Business Days prior to the Closing Date, then ENVI and the Company shall use commercially reasonable efforts to cause the applicable portion of the Transaction Share Consideration to be issued to the Company Shareholder in book-entry form as soon as practicable on or after the second (2nd) Business Day after such delivery.
(f) If any portion of the Transaction Share Consideration is to be issued to a Person other than the Company Shareholder in whose name the surrendered Certificate or the Company Share in book-entry form is registered, it shall be a condition to the issuance of the applicable portion of the Transaction Share Consideration that, in addition to any other requirements set forth in the Letter of Transmittal or the Exchange Agent Agreement, (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Company Share in book-entry form shall be properly transferred and (ii) the Person requesting such consideration pay to the Exchange Agent any transfer or similar Taxes required as a result of such consideration being issued to a Person other than the registered holder of such Certificate or Company Share in book-entry form or establish to the satisfaction of the Exchange Agent that such transfer or similar Taxes have been paid or are not payable.
(g) No interest will be paid or accrued on the Transaction Share Consideration (or any portion thereof). From and after the Effective Time, until surrendered or transferred, as applicable, in accordance with this Section 2.5, each Company Share (other than, for the avoidance of doubt, the Company Shares cancelled and extinguished pursuant to Section 2.1(j) or any Company Dissenting Shares) shall solely represent the right to receive a portion of the Transaction Share Consideration to which such Company Share is entitled to receive pursuant to Section 2.1(g).
(h) At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers of Company Shares that were outstanding immediately prior to the Effective Time.
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(i) Any portion of the Exchange Fund that remains unclaimed by the Company Shareholders twelve (12) months following the Closing Date shall be delivered to ENVI or as otherwise instructed by ENVI, and any Company Shareholder who has not exchanged his, her or its Company Shares for the applicable portion of the Transaction Share Consideration in accordance with this Section 2.5 prior to that time shall thereafter look only to ENVI for the issuance of the applicable portion of the Transaction Share Consideration, without any interest thereon. None of ENVI, the Surviving Company or any of their respective Affiliates shall be liable to any Person in respect of any consideration delivered to a public official pursuant to any applicable abandoned property, unclaimed property, escheat, or similar Law. Any portion of the Transaction Share Consideration remaining unclaimed by the Company Shareholders immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of ENVI free and clear of any claims or interest of any Person previously entitled thereto.
Section 2.6 Withholding. ENVI, Merger Sub, the Group Companies and the Exchange Agent shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any consideration or other amount payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable Tax Law; provided, however, that in the event that ENVI determines that it is so required to deduct or withhold any such amounts, ENVI shall use commercially reasonable efforts to provide at least five (5) Business Days prior written notice thereof to the Company, including a reasonably detailed explanation therefor, and shall reasonably cooperate with the Company in responding to any requests for information or clarification made by the Company in respect thereof; provided, that such notice shall not be required for withholdings with respect to (i) any amounts properly treated as compensation for services for applicable tax purposes; (ii) any withholding required in connection with the failure to deliver the certification described in Section 5.21; and (iii) any withholding arising as a result of a failure of an applicable holder to provide a duly completed IRS Form W-9 or applicable IRS Form W-8. To the extent that amounts are so withheld and timely remitted to the applicable Tax Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. The Parties shall cooperate in good faith to eliminate or reduce any such deduction or withholding (including through the request and provision of any statements, forms or other documents to reduce or eliminate any such deduction or withholding).
Section 2.7 Company Dissenting Shares. Notwithstanding anything to the contrary herein, any Company Shares for which a Company Shareholder (a) has not voted in favor of the Merger or consented to it in writing and (b) has demanded the appraisal of such Company Shares in accordance with, and has complied in all respects with, Section 262 of the DGCL (collectively, such shareholders, the Company Dissenting Shareholders, and such shares, the Company Dissenting Shares) shall not be converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.1(g). From and after the Effective Time, (i) the Company Dissenting Shares shall be cancelled and extinguished and shall cease to exist and (ii) the Company Dissenting Shareholders shall be entitled only to such rights as may be granted to them under Section 262 of the DGCL and shall not be entitled to exercise any of the voting rights or other rights of a stockholder of ENVI, the Surviving Company or any of their respective Affiliates (including ENVI); provided, that if any Company Dissenting Shareholder effectively withdraws or loses such appraisal rights (whether through failure to perfect such appraisal rights or
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otherwise), then the Company Shares held by such Company Dissenting Shareholder (A) shall no longer be deemed to be Company Dissenting Shares and (B) shall be treated as if they had been converted automatically at the Effective Time into the right to receive the Per Share Merger Consideration pursuant to Section 2.1(g) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables set forth in Section 2.5(d). Each Company Dissenting Shareholder who becomes entitled to payment for his, her or its Company Dissenting Shares pursuant to the DGCL shall receive payment thereof from the Company in accordance with the DGCL. The Company shall give ENVI prompt notice of any written demands for appraisal of any Company Share, attempted withdrawals of such demands and any other documents or instruments served pursuant to the DGCL and received by the Company relating to stockholders rights of appraisal in accordance with the provisions of Section 262 of the DGCL, and ENVI shall, at its sole cost and expense, have the opportunity to participate in, but not control, all negotiations and Proceedings with respect to all such demands. The Company shall not, except with the prior written consent of ENVI (which Consent shall not be unreasonably withheld, conditioned, or delayed), settle, or make any payment, or deliver any consideration, with respect to, any such demand.
Section 2.8 Further Assurances. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Company following the Merger, with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company, Merger Sub or the Surviving Company (as applicable), the applicable directors and officers of the Company, Merger Sub, the Surviving Company and ENVI (or their designees) are fully authorized in the name of their respective corporations to take, and will take, all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES
Except as set forth in the Company Disclosure Schedules (which shall only qualify the representations and warranties in this Article 3 in the manner set forth in Section 8.8), the Company hereby represents and warrants to the ENVI Parties, in each case, as of the date of this Agreement and as of the Closing, as follows:
Section 3.1 Organization and Qualification.
(a) Each Group Company is a corporation, limited liability company or other applicable business entity duly organized, incorporated or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of organization, incorporation or formation (as applicable). Section 3.1(a) of the Company Disclosure Schedules sets forth the jurisdiction of formation or organization (as applicable) for each Group Company. Each Group Company has the requisite corporate, limited liability company or other applicable business entity power and authority to own, lease and operate
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its properties and to carry on its businesses as presently conducted, except where the failure to have such power or authority would not have a Company Material Adverse Effect.
(b) True and complete copies of the Governing Documents of the Company and the Company Shareholders Agreement have been made available to ENVI, in each case, as amended and in effect as of the date of this Agreement. The Governing Documents of the Company and the Company Shareholders Agreement are in full force and effect, and the Company is not in breach or violation of any provision set forth in its Governing Documents or the Company Shareholders Agreement.
(c) Each Group Company is duly qualified or licensed to transact business and is in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) in each jurisdiction in which the property and assets owned, leased or operated by it, or the nature of the business conducted by it, makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing would not have a Company Material Adverse Effect.
Section 3.2 Capitalization of the Group Companies.
(a) Section 3.2(a) of the Company Disclosure Schedules sets forth a true and complete statement, as of the date hereof, of (i) the number and class or series (as applicable) of all of the Equity Securities of the Company issued and outstanding as of the date hereof, and, (ii) the identity of the Persons that are the record owners thereof. Except as set forth on Section 3.2(a) of the Company Disclosure Schedules or for Equity Securities issued or granted after the date hereof either permitted by Section 5.1(b)(iv) (including as set forth in Section 5.1(b)(iv) of the Company Disclosure Schedules), or in accordance with Section 5.1(b)(iv) (including, for the avoidance of doubt, upon the exercise of any Company Options or Company Warrants), the Company does not have any issued and outstanding Equity Securities. All of the outstanding Company Shares have been duly authorized and validly issued and are fully paid and non-assessable, and each Company Option outstanding immediately prior to the Effective Time will be an in the money Company Option for purposes of Section 2.5 (i.e., the value of the Transaction Share Consideration allocated to each Company Option (determined by reference to, for the avoidance of doubt, the ENVI Share Value) is in excess of the exercise (or similar) price applicable to such Company Option).
(b) The Equity Securities of the Company (i) were not issued in violation of the Governing Documents of the Company, or in violation of the Company Shareholders Agreement or any other Contract to which the Company is party or bound, (ii) were not issued in violation of any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person, and (iii) have been offered, sold and issued in compliance with applicable Law, including Securities Laws. Except for the Company Options, Company Warrants and GPR Notes set forth on Section 3.2(a) of the Company Disclosure Schedules and those either permitted by Section 5.1(b)(iv) (including as set forth in Section 5.1(b)(iv) of the Company Disclosure Schedules), or issued, granted or entered into in accordance with Section 5.1(b)(iv) the Company has no outstanding (x) equity appreciation, phantom equity or profit participation rights, options, restricted stock units, phantom stock or other compensatory
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equity or equity-linked awards, and no such awards have been promised to any Person, or (y) warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require the Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of the Company.
(c) Section 3.2(c) of the Company Disclosure Schedules sets forth a true and complete statement of (i) the number and class or series (as applicable) of all of the Equity Securities of each Subsidiary of the Company issued and outstanding and (ii) the identity of the Persons that are the record and beneficial owners thereof. Except as set forth on Section 3.2(c) of the Company Disclosure Schedules, there are no issued or outstanding (A) equity appreciation, phantom equity or profit participation rights, options, restricted stock, restricted stock units, phantom stock or other compensatory equity or equity-linked awards, and no such awards have been promised to any Person, or (B) warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require any Subsidiary of the Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of the Subsidiaries of the Company. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of any Equity Securities of any Subsidiary of the Company. There are no outstanding bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which holders of Company Shares may vote. No Subsidiary of the Company has adopted, sponsored or maintained any incentive equity or equity-based plan providing for equity or equity-linked incentives or compensation to any Person.
(d) Except as set forth on Section 3.2(d) of the Company Disclosure Schedules, there are no voting trusts, proxies or other Contracts with respect to the voting or transfer of the Companys Equity Securities between the Company and any other Person.
(e) None of the Group Companies owns or holds (of record, beneficially, legally or otherwise), directly or indirectly, any Equity Securities in any other Person or the right to acquire any such Equity Security, and none of the Group Companies are a partner or member of any partnership, limited liability company or joint venture.
(f) Section 3.2(f) of the Company Disclosure Schedules sets forth a list of all Company Change of Control Payments as of the date of this Agreement.
(g) Section 3.2(g) of the Company Disclosure Schedules sets forth a true and complete statement, as of the date hereof, of (x) with respect to each Company Equity Award, (i) the name of the holder thereof, (ii) the date of grant, (iii) exercise (or similar) price, if applicable , (iv) any applicable expiration (or similar) date, (v) any applicable vesting schedule (including acceleration provisions), (vi) with respect to each Company Option, whether such Company Option is an Incentive Stock Option, and (vii) with respect to each Company Warrant, the exercise (or similar) price.
(h) Section 3.2(h) of the Company Disclosure Schedules sets forth a list of all Indebtedness of the Group Companies of the type described in clause (a) or (b) of the definition of
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Indebtedness as of the date of this Agreement, including the principal amount of such Indebtedness, the outstanding balance as of the date of this Agreement, and the debtor and the creditor thereof.
Section 3.3 Authority. The Company has the requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is (or, in the case of any Ancillary Document contemplated hereby to be entered into after the date of this Agreement, will be) a party and (subject to the approval and adoption of this Agreement and the transactions contemplated hereby (including the Merger) by holders of (a) a majority of the voting power of the outstanding Company Shares, voting together on an as-converted to Company Common Shares basis, (b) a majority of the outstanding Company Common Shares, (c) the majority of the outstanding Company Preferred Shares, voting together on an as-converted to Company Common Shares basis, (d) the majority of the outstanding Company Series C Preferred Shares, voting as a separate class, and (e) the majority of the Company Series D Preferred Shares, voting as a separate class (clauses (a)-(e), the Company Required Shareholder Approval)), to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the Ancillary Documents to which the Company is or will be a party, the performance of the Companys obligations hereby and thereby and the consummation of the transactions contemplated hereby and thereby, have been duly and validly authorized and approved by the Company Board and upon receipt of the Company Required Shareholder Approval, no other corporate or equivalent action or Proceeding on the part of the Company or the Company Shareholders is necessary to authorize this Agreement or such Ancillary Documents, the Companys performance of its obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby. This Agreement and each Ancillary Document to which the Company is contemplated hereby to be a party as of the date hereof has been (and each Ancillary Document to which the Company is contemplated hereby to be a party following the execution of this Agreement, will be upon execution thereof), duly and validly executed and delivered by the Company and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Company (assuming that this Agreement and the Ancillary Documents to which the Company is or is contemplated to be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party thereto), enforceable against the Company in accordance with their respective terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors rights and subject to general principles of equity). The Company Required Shareholder Approval is the only vote of the holders of any class or series of capital stock of the Company required to approve and adopt this Agreement, the Ancillary Documents to which the Company is or is contemplated to be a party, the performance of the Companys obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby (including the Merger).
Section 3.4 Financial Statements; Undisclosed Liabilities.
(a) The Company has made available to ENVI (i) a true and complete copy of the audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 and the related audited consolidated statements of operations and comprehensive loss, stockholders deficit and cash flows of the Group Companies for each of the periods then ended (the Year End Financial Statements), and (ii) the unaudited consolidated
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balance sheets of the Group Companies as of June 30, 2021 (the Latest Balance Sheet) and the unaudited statements of operations and comprehensive loss, stockholders deficit and cash flows of the Group Companies for the six months ended June 30, 2021 (collectively, with the Year End Financial Statements, the Financial Statements), which are attached as Section 3.4(a) of the Company Disclosure Schedules. The Financial Statements (including the notes thereto, if applicable) (A) were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto), and (B) fairly present, in all material respects, the financial position, results of operations, and cash flows of the Company for the period indicated therein.
(b) Except (i) as set forth on the Year End Financial Statements for 2020, (ii) as set forth on the Latest Balance Sheet (and the notes thereto), (iii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet (excluding any Liabilities directly or indirectly related to a breach of Contract, breach of warranty, tort, Proceeding or violation of, or non-compliance with Law), (iv) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby (including, for the avoidance of doubt, the Company Expenses), (v) executory obligations under Contracts (excluding any Liabilities directly or indirectly related to a breach of Contract), (vi) that are expressly permitted pursuant to or incurred in accordance with Section 5.1(b) and (vii) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities.
(c) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with managements authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate Financial Statements in accordance with GAAP and to maintain accountability for the Group Companies assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(d) Except as set forth on Section 3.4(d) of the Company Disclosure Schedules, in the prior three years, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) significant deficiency in the internal controls over financial reporting of the Group Companies, (ii) a material weakness in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Section 3.5 Consents and Requisite Governmental Approvals; No Violations.
(a) No Consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of the Company with respect to the
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Companys execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which the Company is or will be party or the consummation of the transactions contemplated hereby or thereby, except for (i) compliance with and filings under the Antitrust Laws, (ii) the filing with the SEC of (A) the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, (iii) the filing of the Certificate of Merger or (iv) any other Consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have a Company Material Adverse Effect. The Company is its own ultimate parent entity (as such term is defined in the HSR Act).
(b) None of the execution or delivery by the Company of this Agreement or any Ancillary Documents to which it is or will be a party, the performance by the Company of its obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of any provision of the Companys Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of (A) any Contract to which any Group Company is a party or (B) any Material Permits, (iii) violate, or constitute a breach under, any Order or applicable Law to which any Group Company or any of its properties or assets are subject or bound or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities of any Group Company, except, in the case of any of clauses (ii) through (iv) above, as would not have a Company Material Adverse Effect.
Section 3.6 Permits; Schedule of Permits. Each of the Group Companies has all Permits (the Material Permits) that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted, except where the failure to hold the same would not result in a Company Material Adverse Effect. Except as is not and would not reasonably be expected to be material to the Group Companies, taken as a whole, (i) each Material Permit is in full force and effect in accordance with its terms and (ii) no written notice of revocation, cancellation or termination of any Material Permit has been received by any Group Company. Each of the Material Permits upon its termination or expiration in the ordinary due course will be renewed or reissued in the ordinary course of business upon terms and conditions substantially similar to its existing terms and conditions. There are no Proceedings pending or, to the Companys knowledge, threatened that would reasonably be expected to result in the revocation, cancellation, limitation, restriction or termination of, or the imposition of any material fine, material penalty or other material sanction for violation of any legal or regulatory requirements relating to, any Material Permit.
Section 3.7 Material Contracts.
(a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of the following Contracts to which a Group Company is, as of the date of this Agreement, a party or by which any of their respective assets are bound and that are not expired or have not been terminated, and not including any Contracts pursuant to which the Company has with no material outstanding
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or executory obligations or Liabilities (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, the Material Contracts):
(i) any Contract relating to Indebtedness for borrowed money of any Group Company or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of any Group Company;
(ii) any Contract under which any Group Company is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $500,000;
(iii) any Contract under which any Group Company is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such Group Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $50,000;
(iv) any (A) joint venture, profit-sharing, partnership, collaboration, co-promotion, commercialization or research or development Contract, or similar Contract, in each case, which requires, or would reasonably be expected to require (based on any occurrence, development, activity or event contemplated by such Contract), aggregate payments to or from any Group Company in excess of $1,000,000 over the life of the Contract or (B) other Contract with respect to material Company Licensed Intellectual Property (other than any Non-Scheduled Contracts);
(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of any Group Company to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of ENVI or any of its Affiliates after the Closing, (B) contains any exclusivity, most favored nation or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of any Group Company to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer, in each case, in any material respect or that would so limit or purports to limit, in any material respect, ENVI or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by any Group Company in an amount in excess of (A) $200,000 annually or (B) $1,000,000 over the life of the agreement;
(vii) any Contract requiring any Group Company to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a Group Company, in each case in excess of $50,000;
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(viii) any Contract under which any Group Company has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person outside of the ordinary course of business or, individually or in the aggregate, in an amount in excess of $50,000 or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedules;
(x) any Contract with any Person (A) pursuant to which any Group Company (or ENVI or any of its Affiliates after the Closing) is or may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any material Company Product or any material Intellectual Property Rights;
(xi) any Contract providing for any Company Change of Control Payment;
(xii) any Contract for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets or business of any other Person (other than acquisitions or dispositions made in the ordinary course of business), or under which any Group Company has any continuing obligation with respect to an earn-out, contingent purchase price or other contingent or deferred payment obligation;
(xiii) any settlement, conciliation or similar Contract (A) requiring monetary payments by any Group Company after the date of this Agreement, (B) with a Governmental Entity or (C) that imposes any material, non-monetary obligations on any Group Company (or ENVI or any of its Affiliates after the Closing);
(xiv) each collective bargaining agreement or other Contract with any Group Company, on the one hand, and any labor union, labor organization or works council representing employees of such Group Company, on the other hand;
(xv) any Contract with any Group Company, or with any officer, director, manager, stockholder, member of an Affiliate of any Group Company or any of their respective Affiliates (Affiliate Agreements) (excluding employee confidentiality and invention assignment agreements, equity or incentive equity documents, Governing Documents, employment agreements, indemnification agreements, and offer letters for at-will employment); and
(xvi) any other Contract the performance of which requires either (A) annual payments to or from any Group Company in excess of $300,000 or (B)
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aggregate payments to or from any Group Company in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the applicable Group Company without penalty upon less than thirty (30) days prior written notice.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the Companys knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against such Group Company and, to the Companys knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors rights and subject to general principles of equity), (ii) the applicable Group Company and, to the Companys knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any Material Contract by the applicable Group Company or, to the Companys knowledge, the counterparties thereto. The Company has made available to ENVI true and complete copies of all Material Contracts in effect as of the date hereof (other than purchase orders, invoices, and similar confirmatory or administrative documents that are ancillary to the main contractual relationship between the parties to a particular Contract or group of Contracts and that, in each case, do not contain any material executory or continuing terms, conditions, obligations or rights).
Section 3.8 Absence of Changes. During the period beginning on January 1, 2021 and ending on the date of this Agreement, (a) no Company Material Adverse Effect has occurred and (b) except as expressly contemplated by this Agreement, any Ancillary Document or in connection with the transactions contemplated hereby and thereby, (i) the Group Companies have conducted their businesses in the ordinary course in all material respects, (ii) no Group Company has taken any action that would require the Consent of ENVI if taken during the period from the date of this Agreement until the Closing pursuant to Section 5.1(b)(iv), Section 5.1(b)(viii), Section 5.1(b)(xii) or Section 5.1(b)(xvi) (to the extent related to any of the foregoing) and (iii) no Group Company has taken any action that would require the Consent of ENVI if taken during the period from the date of this Agreement until the Closing pursuant to Section 5.1(b)(i), Section 5.1(b)(xv) or Section 5.1(b)(xvi) (to the extent related to Section 5.1(b)(i) or Section 5.1(b)(xv)).
Section 3.9 Litigation. There is (and since January 1, 2020 there has been) no Proceeding, by any counterparty not a Party hereto, pending or, to the Companys knowledge, threatened against or involving any Group Company or, to the Companys knowledge, pending or threatened against or involving any Group Companys managers, officers, directors or employees (in their capacity as such), that, if adversely decided or resolved, has been or would reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. Neither the Group Companies nor any of their respective properties or assets is subject to any material Order. From January 1, 2020 through the date hereof, there have been no material Proceedings by a Group Company pending against any other Person.
Section 3.10 Compliance with Applicable Law. Each Group Company (a) conducts (and, during the prior three years, has conducted) its business in accordance with all Laws and Orders applicable to such Group Company and is not in violation of any such Law or Order and (b) as of the date of this Agreement, has not received any written communications or, to the Companys
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knowledge, any other communications from a Governmental Entity that alleges that such Group Company is not in compliance with any Law or Order, except in each case of clauses (a) and (b), as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
Section 3.11 Employee Plans.
(a) Section 3.11(a) of the Company Disclosure Schedules sets forth a true and complete list of all material Employee Benefit Plans (including, for each such Employee Benefit Plan, its jurisdiction). With respect to each material Employee Benefit Plan, the Group Companies have provided ENVI with true and complete copies of the material documents pursuant to which the plan is maintained, funded and administered.
(b) Each Employee Benefit Plan has been maintained, operated and administered in all material respects in compliance with applicable Laws and with the terms of such Employee Benefit Plan.
(c) No Group Company has any Liability with respect to or under: (i) a Multiemployer Plan; (ii) a defined benefit plan (as defined in Section 3(35) of ERISA, whether or not subject to ERISA) or a plan that is or was subject to Title IV of ERISA or Section 412 of the Code; (iii) a multiple employer plan within the meaning of Section of 413(c) of the Code or Section 210 of ERISA; or (iv) a multiple employer welfare arrangement as defined in Section 3(40) of ERISA. No Group Company has any material Liabilities to provide any retiree or post-termination or post-ownership health or life insurance or other welfare-type benefits to any Person other than health continuation coverage pursuant to COBRA or similar Law and for which the recipient pays the full premium cost of coverage. No Group Company has any material Liabilities by reason of at any relevant time being considered a single employer under Section 414 of the Code with any other Person.
(d) Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has timely received a favorable determination or opinion or advisory letter from the Internal Revenue Service. To the knowledge of the Company, there are no facts or circumstances that would be reasonably likely to adversely affect the qualified status for any such Employee Benefit Plan. None of the Group Companies has incurred (whether or not assessed) any material penalty or Tax under Section 4980H, 4980B, 4980D, 6721 or 6722 of the Code.
(e) Each Employee Benefit Plan that constitutes in any part a nonqualified deferred compensation plan (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all material respects in operational compliance with, and is in all material respects in documentary compliance with, Section 409A of the Code and its purpose, and no amount under any such plan, agreement or arrangement is or has been subject to the interest and additional Tax set forth under Section 409A(a)(1)(B) of the Code.
(f) There are no pending or, to the Companys knowledge, threatened in writing, material claims or Proceedings with respect to any Employee Benefit Plan (other than routine claims for benefits). There have been no prohibited transactions within the meaning of
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Section 4975 of the Code or Sections 406 or 407 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Employee Benefit Plan that have resulted in or could reasonably be expected to result in a material Liability to any Group Company. With respect to each Employee Benefit Plan, all contributions, distributions, reimbursements and premium payments that are due have been timely made, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
(g) Except as set forth on Section 3.11(g) of the Company Disclosure Schedules, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not materially (alone or in combination with any other event) (i) result in any payment or benefit (including any Company Change of Control Payment) becoming due to or result in the forgiveness of any Indebtedness of any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies, (ii) increase the amount or value of any compensation or benefits payable to any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies or (iii) result in the acceleration of the time of payment or vesting, or trigger any payment or funding of any compensation or benefits to any current or former director, manager, officer, employee, individual independent contractor or other service providers of any of the Group Companies.
(h) No amount that could be received (whether in cash or property or the vesting of property) by any disqualified individual of any of the Group Companies under any Employee Benefit Plan or otherwise as a result of the consummation of the transactions contemplated by this Agreement could, separately or in the aggregate, be nondeductible under Section 280G of the Code or subjected to an excise Tax under Section 4999 of the Code.
(i) The Group Companies have no material obligation to make a gross-up or similar payment in respect of any Taxes that may become payable under Section 4999 or 409A of the Code.
(j) Group Companies do not maintain any Foreign Benefit Plan.
Section 3.12 Environmental Matters.
(a) The Group Companies are now, and have been at all times, in material compliance with all Environmental Laws. No Group Company has conducted any testing showing that any Company Product failed to comply with Environmental Laws, and to the Companys knowledge, no other Person has conducted testing showing such noncompliance.
(b) The Group Companies have all Permits necessary for their business and operations that are required to comply in all material respects with all applicable Environmental Laws and the Group Companies are now and have at all times been in compliance with the terms and conditions of such Permits in all material respects. No Governmental Entity has ever denied any Group Company a Permit for the use, development, or testing of any Company Product.
(c) None of the Group Companies have received any written communication or, to the Companys knowledge, other communication from any Governmental Entity or any other
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Person regarding any actual, alleged, or potential material violation of, or material Liability under, any Environmental Laws, and there is no basis for the same.
(d) There is (and, in the prior three years, there has been) no Proceeding pending or, to the Companys knowledge, threatened in writing against or involving any Group Company in respect to any Environmental Laws.
(e) The Company has not manufactured, Released, treated, stored, disposed of, arranged for disposal of, transported or handled, or exposed any Person to, any Hazardous Substances, and no current or former property or facility is or has been contaminated by any Hazardous Substances, except in material compliance with, and except as could not reasonably be expected to give rise to Liability under, applicable Environmental Laws.
(f) The Group Companies have made available to ENVI copies of all material environmental assessments, audits, Permits, Permit applications, communications with regulators regarding Permits and Permit applications, and reports and all other material environmental, health and safety documents that are in any Group Companys possession or reasonable control relating to the current or former operations, properties or facilities of the Group Companies, as well as the Company Products.
Section 3.13 Intellectual Property.
(a) Section 3.13(a) of the Company Disclosure Schedules sets forth a true and complete list of (i) all currently issued or pending Company Registered Intellectual Property (ii) all Patents that are licensed to any of the Group Companies and included in the Company Licensed Intellectual Property and (iii) material unregistered Marks and Copyrights owned by any Group Company, in each case, as of the date of this Agreement. Section 3.13(a) of the Company Disclosure Schedules lists, for each item of Company Registered Intellectual Property as of the date of this Agreement (A) the record owner of such item where record owner includes situations where Company is the assignee, the applicant or beneficiary of an executory obligation to assign, (B) the jurisdictions in which such item has been issued or registered or filed, (C) the issuance, registration or application date, as applicable, for such item and (D) the issuance, registration or application number, as applicable, for such item.
(b) As of the date of this Agreement, all necessary fees and filings with respect to any Patent constituting Company Registered Intellectual Property and any other material Company Registered Intellectual Property have been timely submitted to the relevant intellectual property office or Governmental Entity and Internet domain name registrars to maintain such Patents and other material Company Registered Intellectual Property in full force and effect, except, in each case, where a Group Company has, in its reasonable business judgment, decided to cancel, abandon, allow to lapse or not renew any immaterial issuance, registration or application. As of the date of this Agreement, no issuance or registration obtained and no application filed by the Group Companies for any Intellectual Property Rights has been cancelled, abandoned, allowed to lapse or not renewed, except where such Group Company has, in its reasonable business judgment, decided to cancel, abandon, allow to lapse or not renew any immaterial issuance, registration or application. As of the date of this Agreement, there are no material Proceedings pending that relate to any of the Company Registered Intellectual Property and, to the Companys
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knowledge, no such material Proceedings are threatened by any Governmental Entity or any other Person.
(c) A Group Company exclusively owns all right, title and interest in and to all material Company Owned Intellectual Property, free and clear of all Liens or obligations to others (other than Permitted Liens). For all Patents owned or purported to be owned by the Group Companies, each inventor on the Patent has presently assigned their rights to a Group Company. No Group Company has (i) transferred ownership of, or granted any exclusive license with respect to, any material Company Owned Intellectual Property to any other Person or (ii) granted any customer the right to use any material Company Product on anything other than a non-exclusive basis. Section 3.13(c) of the Company Disclosure Schedules sets forth a list of all current (i.e., not terminated or expired) Contracts for Company Licensed Intellectual Property as of the date of this Agreement pursuant to which any Group Company has been granted any license or covenant not to sue under, or otherwise has received or acquired any right (whether or not exercisable) or interest in, such Company Licensed Intellectual Property, other than any of the following (the Non-Scheduled Contracts): (A) Contracts for Off-the-Shelf Software, (B) Contracts for Public Software, (C) non-disclosure Contracts and (D) Contracts with licenses granted by employees, individual consultants or individual contractors of any Group Company to a Group Company that do not materially differ from the Group Companies form therefor that has been made available to ENVI. The applicable Group Company has valid rights under all of its Contracts for Company Licensed Intellectual Property to use, sell, license and otherwise exploit, as the case may be, all Company Licensed Intellectual Property licensed pursuant to such Contracts as the same is currently used, sold, licensed and otherwise exploited by such Group Company, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. The Company Owned Intellectual Property and the Company Licensed Intellectual Property, to the Companys knowledge, constitute all of the Intellectual Property Rights used or held for use by the Group Companies in the operation of their respective businesses, and all Intellectual Property Rights necessary and sufficient to enable the Group Companies to conduct their respective businesses as currently conducted in all material respects. The Company Registered Intellectual Property (other than Company Registered Intellectual Property that has been applied for but not issued as registered), to the Companys knowledge, is valid and enforceable, and, to the Companys knowledge, all of the Group Companies rights in and to the Company Registered Intellectual Property, the Company Owned Intellectual Property and the Company Licensed Intellectual Property, are valid and enforceable (in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors rights and subject to general principles of equity).
(d) Each Group Companys employees, consultants, advisors and independent contractors who independently or jointly contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any material Company Owned Intellectual Property in the prior three years (each such Person, a Creator) have agreed to maintain and protect the trade secrets and confidential information of all Group Companies. Each Group Companys employees, consultants, advisors and independent contractors who independently or jointly contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any material Company Owned Intellectual Property have assigned or have agreed to a present assignment to such Group Company all Intellectual Property Rights authored, invented, created, improved, modified or developed by such
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Person in the course of such Creators employment or other engagement with such Group Company, other than such Intellectual Property Rights that cannot be assigned under applicable Law.
(e) Each Group Company takes reasonable steps to safeguard and maintain the secrecy of any trade secrets, know-how and other confidential information owned by each Group Company that the applicable Group Company desires to maintain as confidential. Without limiting the foregoing, each Group Company has not disclosed any material trade secrets, know-how or confidential information that the applicable Group Company desired to maintain as confidential to any other Person unless such disclosure was under an appropriate contractual, fiduciary or professional non-disclosure obligations. To the Companys knowledge, in the prior three years, there has been no violation or unauthorized access to or disclosure of any trade secrets, know-how or confidential information of or in the possession each Group Company, or of any written obligations with respect to such.
(f) Except as set forth in Section 3.13(f) of the Company Disclosure Schedules, no funding or support from a Governmental Entity, nor any funding, support or facilities of a university, college, other educational institution, research center or other nonprofit organization was used in the development of any material Company Owned Intellectual Property.
(g) None of the Company Owned Intellectual Property and, to the Companys knowledge, none of the Company Licensed Intellectual Property is subject to any outstanding Order that restricts in any manner the use, sale, transfer, licensing or exploitation thereof by the Group Companies or affects the validity, use or enforceability of any such Company Owned Intellectual Property, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
(h) To the Companys knowledge, neither the conduct of the business of the Group Companies nor any of the Company Products offered, marketed, licensed, provided, sold, distributed or otherwise exploited by the Group Companies nor the design, development, manufacturing, reproduction, use, marketing, offer for sale, sale, importation, exportation, distribution, maintenance or other exploitation of any Company Product as authorized by any Group Company infringes, constitutes or results from an unauthorized use or misappropriation of or otherwise violates any Intellectual Property Rights of any other Person, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
(i) In the prior three years, there is no material Proceeding pending nor has any Group Company received any written communications or, to the Companys knowledge, any other communications (i) alleging that a Group Company has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any other Person, (ii) challenging the validity, enforceability, use or exclusive ownership of any Company Owned Intellectual Property or (iii) inviting any Group Company to take a license under any Patent or consider the applicability of any Patents to any products or services of the Group Companies or to the conduct of the business of the Group Companies.
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(j) To the Companys knowledge, no Person is infringing, misappropriating, misusing, diluting or violating any Company Owned Intellectual Property in any material respect. In the prior three years, no Group Company has made any written claim against any Person alleging any infringement, misappropriation or other violation of any Company Owned Intellectual Property in any material respect.
(k) To the Companys knowledge, each Group Company has obtained, possesses and is in compliance with valid licenses to use all of the Software present on the computers and other Software-enabled electronic devices that it owns or leases or that is otherwise used by such Group Company and/or its employees in connection with the Group Companys business, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as whole. No Group Company has disclosed or delivered to any escrow agent or any other Person, other than employees or contractors who are subject to confidentiality obligations, any of the confidential Software source code that is Company Owned Intellectual Property, and no other Person has the right, contingent or otherwise, to obtain access to or use any such Software source code. To the Companys knowledge, no event has occurred that (with or without notice or lapse of time or both) will, or could reasonably be expected to, result in the delivery, license or disclosure of any confidential Software source code that is owned by a Group Company or otherwise constitutes Company Owned Intellectual Property to any Person who is not, as of the date the event occurs or circumstance or condition comes into existence, a current employee or contractor of a Group Company subject to confidentiality obligations with respect thereto.
(l) No Group Company has accessed, used, modified, linked to, created derivative works from or incorporated into any proprietary Software that constitutes a product or service offered by a Group Company or is otherwise considered Company Owned Intellectual Property and that is distributed outside of the Group Companies, or is otherwise used in a manner that may trigger or subject such Group Company to any obligations set forth in the license for such Public Software, any Public Software, in whole or in part, in each case in a manner that (i) requires any Company Owned Intellectual Property to be licensed, sold, disclosed, distributed, hosted or otherwise made available, including in source code form and/or for the purpose of making derivative works, for any reason, (ii) grants, or requires any Group Company to grant, the right to decompile, disassemble, reverse engineer or otherwise derive the source code or underlying structure of any Company Owned Intellectual Property, (iii) limits in any manner the ability to charge license fees or otherwise seek compensation in connection with marketing, licensing or distribution of any Company Owned Intellectual Property or (iv) otherwise imposes any limitation, restriction or condition on the right or ability of any Group Company to use, hold for use, license, host, distribute or otherwise dispose of any Company Owned Intellectual Property, other than compliance with notice and attribution requirements, in each case, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
Section 3.14 Labor Matters.
(a) In the prior three years, except as has not and would not reasonably be expected to result in, individually or in the aggregate, material Liability to the Group Companies, (i) none of the Group Companies (A) has or has had any Liability for any arrears of wages or other
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compensation for services (including salaries, wage premiums, commissions, fees or bonuses), or any penalties, fines, interest, or other sums for failure to pay or delinquency in paying such compensation, and (B) has or has had any Liability for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Entity with respect to unemployment compensation benefits, social security, social insurances or other benefits or obligations for any employees of any Group Company (other than routine payments to be made in the normal course of business and consistent with past practice); and (ii) the Group Companies have withheld all amounts required by applicable Law or by agreement to be withheld from wages, salaries and other payments to employees or independent contractors or other service providers of each Group Company.
(b) Each Group Company is in compliance in all material respects with all applicable Laws relating to employment or labor, including those related to hiring, background checks, wages, pay equity, hours, collective bargaining and labor relations, classification of independent contractors and employees, equal opportunity, document retention, notice, plant closing and mass layoff, health and safety, employment eligibility verification, immigration, child labor, discrimination, harassment, retaliation, accommodations, disability rights or benefits, affirmative action, workers compensation, unemployment insurance, employment and reemployment rights of members of the uniformed services, secondment and employee leave issues.
(c) In the prior three years, there has been no mass layoff or plant closing as defined by WARN related to any Group Company, and the Group Companies have not incurred any material Liability under WARN nor are they reasonably expected to incur any Liability under WARN as a result of the transactions contemplated by this Agreement.
(d) No Group Company is a party to or bound by any CBA and no employees of the Group Companies are represented by any labor union, labor organization, works council, employee delegate, representative or other employee collective group with respect to their employment. There is no duty on the part of any Group Company to bargain with any labor union, labor organization, works council, employee delegate, representative or other employee collective group, including in connection with the execution and delivery of this Agreement, the Ancillary Documents or the consummation of the transactions contemplated hereby or thereby. In the prior three years, there has been no actual or, to the Companys knowledge, threatened material unfair labor practice charges, material grievances, arbitrations, strikes, lockouts, work stoppages, slowdowns, picketing, handbilling or other material labor disputes against or affecting any Group Company. To the Companys knowledge, in the prior three years, there have been no labor organizing activities with respect to any employees of any Group Company.
(e) No employee layoff, facility closure or shutdown (whether voluntary or by Order), reduction-in-force, furlough, temporary layoff, material work schedule change or reduction in hours, or reduction in salary or wages, or other workforce changes affecting employees of the Group Companies has occurred in the prior three years or, as of the date of this Agreement, is currently contemplated, planned or announced, including as a result of COVID-19 or any Pandemic Measure. As of the date of this Agreement, the Group Companies have not otherwise experienced any material employment-related liability with respect to or arising out of COVID-19 or any Pandemic Measure.
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Section 3.15 Insurance. Section 3.15 of the Company Disclosure Schedules sets forth a list of all material policies of fire, liability, workers compensation, property, casualty and other forms of insurance owned or held by any Group Company as of the date of this Agreement. 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, and true and complete copies of all such policies have been made available to ENVI. As of the date of this Agreement, no claim by any Group Company is pending under any such policies as to which coverage has been denied or disputed, or rights reserved to do so, by the underwriters thereof, except as would not have a Company Material Adverse Effect.
Section 3.16 Tax Matters.
(a) Each Group Company has prepared and filed all material Tax Returns required to have been filed by or with respect to it, all such Tax Returns are true and complete in all material respects, and each Group Company has paid all material Taxes required to have been paid by or with respect to it, regardless of whether shown on a Tax Return.
(b) Each Group Company has withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid by it in connection with amounts paid or owing to any employee, individual independent contractor, other service provider, equity interest holder or other Person.
(c) No Group Company is currently the subject of a Tax audit or examination or similar Proceeding or has been informed in writing of the commencement or anticipated commencement of any Tax audit or examination or similar Proceeding, which has not been resolved or completed, in each case with respect to material Taxes. No assessment, deficiency or similar claim for material Taxes with respect to a Group Company has been proposed or assessed by any Tax Authority.
(d) No Group Company has consented to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that are extensions of time to file Tax Returns obtained in the ordinary course of business.
(e) No closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Tax Authority with respect to a Group Company, which agreement or ruling would be effective after the Closing Date.
(f) No Group Company is or has been a party to any listed transaction as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. income Tax Law).
(g) There are no Liens for material Taxes on any assets of the Group Companies, other than liens for Taxes not yet due and payable.
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(h) During the two (2)-year period ending on the date of this Agreement, no Group Company was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code).
(i) No Group Company (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company) or (ii) has any material Liability for the Taxes of any Person (other than a Group Company or any of its current Affiliates) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. Law), as a transferee or successor or by Contract or otherwise (other than liabilities pursuant to a Contract entered into in the ordinary course of business that is not primarily related to Taxes).
(j) No written claims have ever been made by any Tax Authority in a jurisdiction where a Group Company does not file a Tax Return claiming that such Group Company is or may be subject to taxation by that jurisdiction that would be reported on or the subject of such Tax Return, which claims have not been resolved or withdrawn.
(k) No Group Company is a party to any Tax allocation, Tax sharing, Tax indemnity or similar agreement (other than any such agreement to which only Group Companies are parties or any such agreement that is included in a Contract entered into in the ordinary course of business that is not primarily related to Taxes) and no Group Company is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal income Tax purposes.
(l) No Group Company has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized. Each Group Company is tax resident (and subject to income Tax) only in its jurisdiction of formation.
(m) Company currently conducts a business. Such business is the Companys historic business within the meaning of Treasury Regulations Section 1.368-1(d), and no assets of the Company have been sold, transferred, or otherwise disposed of that would prevent the Surviving Company from continuing the historic business of the Company or from using a significant portion of the Companys historic business assets in a business following the Merger, as such terms are used in Treasury Regulations Section 1.368-1(d).
(n) As of the date of this Agreement, to the knowledge of the Company, no Group Company has taken or agreed to take any action, in each case not contemplated by this Agreement and/or any Ancillary Document, that would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment. To the knowledge of the Company, no facts or circumstances exist as of the date of this Agreement, in each case not contemplated by this Agreement or any Ancillary Document, that would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment.
(o) The Company is not an investment company as such term is use in Section 368(a)(2)(F) of the Code.
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(p) No Group Company will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any period (or any portion thereof) beginning after the Closing Date as a result of any installment sale or other transaction occurring prior to the Closing, any accounting method change or agreement with any Tax Authority filed or made prior to the Closing or use of an improper method of accounting prior to the Closing, any prepaid amount received prior to the Closing or any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law) occurring or existing prior to the Closing. No Group Company has any liability in connection with Section 965 of the Code, or has ever owned any Person organized in a jurisdiction located outside the United States.
Section 3.17 Brokers. Except for fees (including a good faith estimate of the amounts due and payable assuming the Closing occurs) set forth on Section 3.17 of the Company Disclosure Schedules (which fees shall be the sole responsibility of the Company), no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company or any of its Affiliates for which any of the Group Companies has any obligation.
Section 3.18 Real and Personal Property.
(a) Owned Real Property. No Group Company owns any real property.
(b) Leased Real Property. Section 3.18(b) of the Company Disclosure Schedules sets forth a true and complete list (including street addresses) of all real property leased by any of the Group Companies (the Leased Real Property) and all Real Property Leases pursuant to which any Group Company is a tenant or landlord as of the date of this Agreement. True and complete copies of all such Real Property Leases have been made available to ENVI. Each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the applicable Group Company party thereto, enforceable in accordance with its terms against such Group Company and, to the Companys knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors rights and subject to general principles of equity). There is no material breach or default by any Group Company or, to the Companys knowledge, any counterparty under any Real Property Lease, and, to the Companys knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a material breach or default under any Real Property Lease or would permit termination of, or a material modification or acceleration thereof, by any counterparty to any Real Property Lease. The Group Companies possession and quiet enjoyment of the Leased Real Property under any Real Property Lease has not been materially disturbed, and to the Companys knowledge, there are no material disputes with respect to any Real Property Lease.
(c) Personal Property. Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the material tangible assets and properties of the Group Companies reflected in the Financial Statements or thereafter acquired by the Group Companies, except for assets disposed of in the ordinary course of business.
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(d) Assets. Immediately after the Effective Time, the tangible assets (which, for the avoidance of doubt, shall include any tangible assets held pursuant to valid leasehold interest, license or other similar interests or right to use any assets) of the Group Companies will constitute all of the tangible assets necessary to conduct the businesses of the Group Companies immediately after the Closing, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
Section 3.19 Transactions with Affiliates. Section 3.19 of the Company Disclosure Schedules sets forth all Contracts between (a) any Group Company, on the one hand, and (b) any employee, officer, director, equityholder or Affiliate of any Group Company or any spouse, child or member of the same household of any officer, director or employee of any Group Company or any Affiliate of any Group Company, on the other hand (each Person identified in this clause (b), a Company Affiliated Party), other than (i) Contracts with respect to a Company Affiliated Partys status as an (A) employee (including Employee Benefits Plans and other ordinary course compensation) entered into in the ordinary course of business, or (B) consultant or other non-employee service provider of the Company that have been made available to ENVI and (ii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.1(b) or entered into in accordance with Section 5.1(b), (iii) Contracts with respect to a Company Shareholders or a holder of Company Equity Awards status as a holder of Equity Securities of the Company, and (iv) customary director and officer indemnification agreements that have been made available to ENVI. No Company Affiliated Party (A) owns any material interest in any material asset or property used in any Group Companys business, or (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a material supplier, vendor, partner, customer, lessor or other material business relation of any Group Company. All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 3.19 (including, for the avoidance of doubt, pursuant to the second sentence of this Section 3.19) are referred to herein as Company Affiliated Party Transactions.
Section 3.20 Data Privacy and Security.
(a) Since March 31, 2019, each Group Company has been in compliance with Privacy Laws, and in all material respects with (i) Contracts (or portions thereof) between such Group Company and other Persons relating to Personal Data and (ii) applicable written policies, public statements and other public representations relating to the Processing of Personal Data, inclusive of all disclosures required by applicable Privacy Laws (Privacy and Data Security Policies, and together with Privacy Laws and such Contracts, Privacy Commitments). The execution, delivery and performance by the Company of this Agreement and the Ancillary Documents to which the Company is or will be a party, and the consummation of the transactions contemplated hereby or thereby, are not reasonably expected to, directly or indirectly, result in a violation of any Privacy Commitments that would be materially adverse to the Group Companies, taken as a whole.
(b) Since March 31, 2019, the Privacy and Data Security Policies have at all times been maintained and made available to individuals in accordance with reasonable industry practices and as required by Privacy Laws, are accurate and complete and are not misleading or deceptive (including by omission). The practices of each Group Company with respect to the
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Processing of Personal Data conform in all material respects to the Privacy and Data Security Policies that govern such Personal Data.
(c) There is (and in the prior three years there has been) no material Proceeding pending or, to the Companys knowledge, threatened against or involving any Group Company initiated by any Person (including (i) the United States Federal Trade Commission, any state attorney general or similar state official, (ii) any other Governmental Entity, foreign or domestic or (iii) any regulatory or self-regulatory entity) alleging that any Processing of Personal Data by or on behalf of a Group Company is or was in violation of any Privacy Commitments. To the Companys knowledge, there are no facts, circumstances or conditions that would reasonably be expected to form the basis for any Proceeding for any potential violation of any Privacy Commitments.
(d) In the prior three years, (i) there has been no unauthorized access to, or unauthorized use, disclosure, or Processing of Personal Data in the possession or control of any Group Company or any of its contractors with regard to any Personal Data obtained from or on behalf of a Group Company (Security Incident), (ii) there have been no unauthorized intrusions or breaches of security into any Company IT Systems, and (iii) none of the Group Companies has notified or been required to notify any Person of any (A) loss, theft or damage of, or (B) other unauthorized or unlawful access to, or use, disclosure or other Processing of, Personal Data, except, in each case of clauses (i), (ii), and (iii), as would not have a Company Material Adverse Effect. Each Group Company has implemented commercially reasonable administrative, physical and technical safeguards to protect the confidentiality, integrity and security of Personal Data against any Security Incident, including taking all reasonable steps to safeguard and back up Personal Data.
(e) Each Group Company owns or has a license or other right to use the Company IT Systems as necessary to operate the business of each Group Company as currently conducted. All Company IT Systems are (i) free from any defect, bug, virus or programming, design or documentation error and (ii) in sufficiently good working condition to effectively perform all information technology operations necessary for the operation of the Group Companies businesses (except for ordinary wear and tear), except in each case of clauses (i) and (ii), as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. In the prior three years, there have not been any material failures, breakdowns or continued substandard performance of any Company IT Systems that have caused a material failure or disruption of the Company IT Systems other than routine failures or disruptions that have been remediated in the ordinary course of business.
Section 3.21 Compliance with International Trade & Anti-Corruption Laws.
(a) None of the Group Companies, any of their respective officers, directors or employees or, to the Companys knowledge, any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing, is or has been, in the prior three years, (i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity; (ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions and Export Control Laws; (iii) an entity owned, directly or indirectly, by one or more Persons described in clause (i) or (ii); or (iv)
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otherwise engaging in dealings with or for the benefit of any Person described in clauses (i) through (iii) or any country or territory which is or has, in the prior three years, been the subject of or target of any Sanctions and Export Control Laws (at the time of this Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea, Venezuela, Sudan and Syria).
(b) None of the Group Companies, any of their respective officers, directors or employees or, to the Companys knowledge, any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing has (i) made, offered, promised, paid or received any unlawful bribes, kickbacks or other similar payments to or from any Person, (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign political party or candidate or (iii) otherwise made, offered, received, authorized, promised or paid any improper payment under any Anti-Corruption Laws.
(c) To the Companys knowledge, as of the date hereof, there are no current or pending internal investigations, third-party investigations (including by any Governmental Entity), or internal or external audits that address any material allegations or information concerning possible material violations of the Anti-Corruption Laws related to the Company or any of the Companys Subsidiaries.
Section 3.22 Information Supplied. None of the information supplied or to be supplied by or on behalf of the Group Companies expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to the Pre-Closing ENVI Shareholders or at the time of the ENVI Shareholders Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, notwithstanding the foregoing provisions of this Section 3.22, no representation or warranty is made by either the Group Companies with respect to information or statements made or incorporated by reference in the Registration Statement / Proxy Statement that were not supplied by or on behalf of the Group Companies for use therein.
Section 3.23 Regulatory Compliance.
(a) No Company Products are or have been classified by the FDA as medical devices, biologics or pharmaceuticals or are or have been otherwise regulated by the FDA or any other Governmental Entity under the Public Health Laws or any other comparable Laws that require any premarket authorization, clearance, or approval for any Company Product before commercialization or that classify medical devices, biologics, or pharmaceuticals as exempt from premarket authorization, clearance, or approval. Neither the FDA nor any other Governmental Entity has provided written or verbal notice to any Group Company that the Company Products may be subject to such Laws by FDA nor any other Governmental Entity regulation under any Public Health Laws or any other comparable Laws.
(b) In the prior three years, none of the Group Companies have held any Regulatory Permits and no such Regulatory Permits are or have been required and necessary for
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the Group Companies to conduct their respective businesses as currently conducted. To the Companys knowledge, no Governmental Entity has informed the Company that a Regulatory Permit is required for the Group Companies to conduct their respective businesses as currently conducted.
(c) There is (and in the prior three years there has been) no material Proceeding pending or, to the Companys knowledge, threatened against or involving any Group Company related to compliance with Public Health Laws. The Group Companies do not have, and, in the prior three years, have not had, any material Liabilities for failure to comply with any Public Health Laws.
(d) In the prior three years, no Group Company has undergone, or is currently undergoing, any inspection related to any Company Product or any other Governmental Entity investigation under any Public Health Law.
Section 3.24 Suppliers. Section 3.24 of the Company Disclosure Schedules sets forth the top ten (10) suppliers/service providers of the Company for the fiscal years ended December 31, 2019 and December 31, 2020 (determined on the basis of payments to such vendors/suppliers) (each, a Material Supplier). Other than in the ordinary course of business, no Material Supplier has terminated, or given written notice that it intends to terminate, any of its business relationship with any Group Company. There has been no material dispute or controversy or, to the Companys knowledge, threatened material dispute or controversy, between any Group Company, on the one hand, and any such Material Supplier, on the other hand.
Section 3.25 Investigation; No Other Representations.
(a) The Company, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition and operations of, the ENVI Parties and (ii) it has been furnished with or given access to such documents and information about the ENVI Parties and their respective businesses and operations as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby.
(b) In entering into this Agreement and the Ancillary Documents to which it is or will be a party, the Company has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 4 and in the Ancillary Documents to which it is or will be a party and no other representations or warranties of any ENVI Party or any other Person, either express or implied, and the Company, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 4 and in the Ancillary Documents to which it is or will be a party, none of the ENVI Parties or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.
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Section 3.26 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY ENVI PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE 3 OR THE ANCILLARY DOCUMENTS, NEITHER THE COMPANY NOR ANY OTHER PERSON MAKES, AND THE COMPANY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF THE GROUP COMPANIES THAT HAVE BEEN MADE AVAILABLE TO ANY ENVI PARTY OR ANY OF THEIR REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF THE GROUP COMPANIES BY THE MANAGEMENT OR ON BEHALF OF THE COMPANY OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY DOCUMENTS, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY ANY ENVI PARTY OR ANY OF THEIR AFFILIATES OR REPRESENTATIVES IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE 3 OR THE ANCILLARY DOCUMENTS, IT IS UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY OR ON BEHALF OF ANY GROUP COMPANY ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF THE COMPANY OR ANY OTHER PERSON, AND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY ANY ENVI PARTY OR ANY OF THEIR AFFILIATES OR REPRESENTATIVES IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES RELATING TO THE ENVI PARTIES
Except (a) as set forth on the ENVI Disclosure Schedules, (which will only qualify the representations and warranties set forth in this Article 4 in the manner set forth in Section 8.8), or (b) as set forth in any ENVI SEC Reports publicly filed with the SEC prior to the date of this Agreement (excluding (x) any disclosures in any risk factors section that do not constitute statements of fact, disclosures in any forward-looking statements disclaimers and other disclosures that are generally cautionary, predictive or forward-looking in nature, (y) any information incorporated by reference into the ENVI SEC Reports (other than from other ENVI SEC Reports), or (z) any information or disclosure subject to a confidential treatment order or not otherwise
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publicly available);, each ENVI Party hereby represents and warrants to the Company, in each case, as of the date of this Agreement and as of the Closing, as follows:
Section 4.1 Organization and Qualification. Each ENVI Party is an exempted company, corporation, limited liability company or other applicable business entity duly organized, incorporated or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of organization, incorporation or formation (as applicable). The Governing Documents of each ENVI Party are in full force and effect, and no ENVI Party is in breach or violation of any provision set forth in its Governing Documents.
Section 4.2 Authority. Each ENVI Party has the requisite exempted company, corporate, limited liability company or other similar power and authority to execute and deliver this Agreement and each Ancillary Document to which it is (or, in the case of any Ancillary Document contemplated hereby to be entered into after the date of this Agreement, will be) a party and, subject to (a) the receipt of the ENVI Shareholder Approval and (b) the approvals and Consents to be obtained by Merger Sub pursuant to Section 5.10 (which, in the case of this clause (b), do not require any Consent other than the Consent of ENVI), to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the Ancillary Documents to which an ENVI Party is or will be a party, the performance of an ENVI Partys obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized and unanimously approved by the members of the ENVI Board present (including that, as of the date hereof, the members of the ENVI Board present at the meeting of the ENVI Board has unanimously made, and has not revoked, the ENVI Board Recommendation) and upon receipt of the ENVI Required Shareholder Approval (and the approvals and Consents to be obtained with respect to Merger Sub pursuant to Section 5.10, which do not require any Consent other than the Consent of ENVI), no other corporate or equivalent action or proceeding on the part of any holder of ENVI capital stock, ENVI or Merger Sub is necessary to authorize this Agreement or such Ancillary Documents, the performance of any ENVI Partys obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby. This Agreement and each Ancillary Document to which an ENVI Party is contemplated hereby to be a party as of the date hereof has been (and each Ancillary Document to which an ENVI Party is contemplated hereby to be a party following the execution of this Agreement, will be upon execution thereof), duly and validly executed and delivered by such ENVI Party and constitutes (or, with respect to each Ancillary Document contemplated to be executed after the execution of this Agreement, will constitute upon execution thereof), a valid, legal and binding agreement of such ENVI Party (assuming this Agreement has been and the Ancillary Documents to which such ENVI Party is or is contemplated to be a party are or will be, upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto), enforceable against such ENVI Party in accordance with their respective terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors rights and subject to general principles of equity). The ENVI Required Shareholder Approval and the approvals and Consents to be obtained by Merger Sub pursuant to Section 5.10 are the only votes or Consents of the holders of any class or series of capital stock of ENVI or Merger Sub required to approve and adopt this Agreement, the Ancillary Documents to
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which any ENVI Party is or is contemplated to be a party, the performance of the ENVI Parties obligations hereunder and thereunder and the consummation of the transactions contemplated hereby (including the Merger).
Section 4.3 Consents and Requisite Governmental Approvals; No Violations.
(a) No Consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of an ENVI Party with respect to such ENVI Partys execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which it is or will be party or the consummation of the transactions contemplated hereby or thereby, except for (i) compliance with and filings under the Antitrust Laws, (ii) the filing with the SEC of (A) the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, (iii) such filings with and approvals of Nasdaq to permit the ENVI Shares to be issued in connection with the transactions contemplated by this Agreement and the other Ancillary Documents to be listed on Nasdaq, (iv) the filing of the Certificate of Merger, or (v) any other Consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have an ENVI Material Adverse Effect.
(b) None of the execution or delivery by an ENVI Party of this Agreement or any Ancillary Document to which it is or will be a party, the performance by an ENVI Party of its obligations hereunder or thereunder or the consummation by an ENVI Party of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of any provision of the Governing Documents of an ENVI Party, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which an ENVI Party is a party, (iii) violate, or constitute a breach under, any Order or applicable Law to which any such ENVI Party or any of its properties or assets are subject or bound or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities of an ENVI Party, except in the case of any of clauses (ii) through (iv) above, as would not have an ENVI Material Adverse Effect.
Section 4.4 Brokers. Except for fees (including a good faith estimate of the amounts due and payable assuming the Closing occurs) set forth on Section 4.4 of the ENVI Disclosure Schedules (which fees shall be the sole responsibility of the ENVI), no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any ENVI Party or any of its Affiliates for which an ENVI Party has any obligation.
Section 4.5 Information Supplied. None of the information supplied or to be supplied by or on behalf of either ENVI Party expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is
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mailed to the Pre-Closing ENVI Shareholders or at the time of the ENVI Shareholders Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, notwithstanding the foregoing provisions of this Section 4.5, no representation or warranty is made by either ENVI Party with respect to information or statements made or incorporated by reference in the Registration Statement / Proxy Statement that were not supplied by or on behalf of the ENVI Parties for use therein.
Section 4.6 Capitalization of the ENVI Parties.
(a) Section 4.6(a) of the ENVI Disclosure Schedules sets forth a true and complete statement of the number and class or series (as applicable) of the issued and outstanding ENVI Shares. All outstanding ENVI Shares (except to the extent such concepts are not applicable under the applicable Law of ENVIs jurisdiction of organization, incorporation or formation, as applicable, or other applicable Law) have been duly authorized and validly issued and are fully paid and non-assessable. Such Equity Securities (x) were not issued in violation of the Governing Documents of ENVI or in violation of any other Contracts to which ENVI is a party or otherwise bound, in each case, in any material respect, (y) are not subject to any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person (other than transfer restrictions under applicable Securities Laws or under the Governing Documents of ENVI) and were not issued in violation of any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person and (z) have been offered, sold and issued in compliance with applicable Law, including Securities Laws, in each case under clause (y) and (z), in all material respects. Except for the ENVI Shares set forth on Section 4.6(a) of the ENVI Disclosure Schedules, immediately prior to Closing and before giving effect to the PIPE Financing and the ENVI Shareholder Redemption, there shall be no other Equity Securities of ENVI issued and outstanding.
(b) Immediately after the Effective Time, (i) the authorized share capital of ENVI will consist of 500,000,000 shares of ENVI Common Stock and 10,000,000 shares of preferred stock, par value $0.0001 per share, of which 25,875,000 shares of ENVI Common Stock will be issued and outstanding (not including any shares of ENVI Common stock issuable in connection with the PIPE Financing or any shares of ENVI Common Stock to be issued pursuant to this Agreement, and assuming that no redemptions of ENVI Class A Shares are effected in connection with the ENVI Shareholder Redemption, none of the Rollover Options are exercised for ENVI Shares on the Closing Date and no Equity Securities are issued or granted after the Effective Time (including, for the avoidance of doubt, any Equity Securities granted under or issued in respect of the ENVI Incentive Equity Plan (or any awards thereunder) or the ENVI Employee Stock Purchase Plan on the Closing Date)) and no shares of preferred stock or any other Equity Securities of ENVI will be issued and outstanding ((A) assuming that the Allocation Schedule is true and correct in all respects and otherwise in accordance with the requirements of Section 2.3(a) and the Company has complied in all respects with Section 2.4(e) and Section 5.1(b)(iv) and (B) other than the Rollover Options, any Equity Securities either permitted to be issued or granted pursuant to Section 5.11(h) (including as set forth in Section 5.11(h) of the ENVI Disclosure Schedules or in accordance with Section 5.11(h)) or any Equity Securities issued or granted after the Effective Time (including, for the avoidance of doubt, any Equity Securities
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granted under or issued in respect of the ENVI Incentive Equity Plan (or any awards thereunder) or the ENVI Employee Stock Purchase Plan on the Closing Date)), and (ii) all of the issued and outstanding ENVI Shares (A) will be duly authorized, validly issued, fully paid and nonassessable, (B) will have been issued in compliance with applicable Law, including Securities Laws, in each case under clause (B), in all material respects and (C) will not have been issued in breach or violation of any preemptive rights or Contract to which ENVI is a party or bound, in each case under clause (C), in any material respect.
(c) Except (w) as set forth on Section 4.6(a) of the ENVI Disclosure Schedules, (x) for the issuance of the ENVI Common Stock as expressly contemplated by this Agreement or the PIPE Subscription Agreements or the entry into the applicable Ancillary Documents, (y) as permitted to be issued, granted or entered into, as applicable, pursuant to Section 5.11(h) (including as set forth in Section 5.11(h) of the ENVI Disclosure Schedules) in accordance with Section 5.11(h) or (z) for the capital stock of Merger Sub owned by ENVI, (i) there are no outstanding (A) equity appreciation, phantom equity or profit participation rights with respect to an ENVI Party is a party or pursuant to which it has any obligations or (B) options, restricted stock, restrictive stock units phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts or commitment that could require ENVI to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of any ENVI Party. There are no outstanding bonds, debentures, notes or other indebtedness of ENVI having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which holders of ENVI Common Stock may vote. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of any ENVI Partys Equity Securities between an ENVI Party and any other Person. The ENVI Parties are not a party to any shareholders agreement, or registration rights agreement relating to ENVI Common Stock or any other Equity Securities of ENVI. There are no securities issued by or to which ENVI is a party containing anti-dilution or similar provisions that will be triggered by the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, in each case, that have not been or will not be waived on or prior to the Closing Date.
(d) The Equity Securities of Merger Sub outstanding as of the date of this Agreement (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance with applicable Law, including Securities Laws, in each case under clause (ii), in all material respects and (iii) were not issued in breach or violation of any preemptive rights or Contract to which Merger Sub is a party or bound. All of the outstanding Equity Securities of Merger Sub are owned directly by ENVI free and clear of all Liens (other than transfer restrictions under applicable Securities Law or under the Governing Documents of Merger Sub). As of the date of this Agreement, ENVI has no Subsidiaries other than Merger Sub and does not own, directly or indirectly, any Equity Securities in any Person other than Merger Sub. Merger Sub was formed solely for the purpose of consummating the Merger.
(e) Except for the ownership of ENVI of the Equity Securities of Merger Sub, no ENVI Party owns or holds (of record, beneficially, legally or otherwise), directly or indirectly, any Equity Securities in any other Person or the right to acquire any such Equity Security, and no ENVI Party is a partner or member of any partnership, limited liability company or joint venture.
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Section 4.7 SEC Filings. ENVI has timely filed or furnished all statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC pursuant to Federal Securities Laws since its initial public offering (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the ENVI SEC Reports), and, as of the Closing, will have filed or furnished all other statements, forms, reports and other documents required to be filed or furnished by it subsequent to the date of this Agreement with the SEC pursuant to Federal Securities Laws through the Closing (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, but excluding the Registration Statement / Proxy Statement, the Additional ENVI SEC Reports). Each of the ENVI SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, complied and each of the Additional ENVI SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, will comply, in all material respects with the applicable requirements of the Federal Securities Laws (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder) applicable to the ENVI SEC Reports or the Additional ENVI SEC Reports (for purposes of the Additional ENVI SEC Reports, assuming that the representation and warranty set forth in Section 3.22 is true and correct in all respects with respect to all information supplied by or on behalf of Group Companies expressly for inclusion or incorporation by reference therein). As of their respective dates of filing, the ENVI SEC Reports did not, and the Additional ENVI SEC Reports will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made or will be made, as applicable, not misleading (for purposes of the Additional ENVI SEC Reports, assuming that the representation and warranty set forth in Section 3.22 is true and correct in all respects with respect to all information supplied by or on behalf of Group Companies expressly for inclusion or incorporation by reference therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the ENVI SEC Reports.
Section 4.8 Absence of Changes. During the period beginning on December 31, 2020 and ending on the date of this Agreement, no ENVI Material Adverse Effect has occurred.
Section 4.9 Contracts; No Defaults.
(a) Section 4.9(a) of the ENVI Disclosure Schedules contains a listing of all Contracts including every material contract (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than confidentiality and non-disclosure agreements) to which an ENVI Party is a party or by which any of their respective assets are bound as of the date hereof.
(b) Each Contract of a type required to be listed on Section 4.9(a)of the ENVI Disclosure Schedules (each, an ENVI Material Contract), (i) is valid and binding on the applicable ENVI Party and, to the ENVI Parties knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against such ENVI Party and, to the ENVI Parties knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors rights and subject to general principles of equity), (ii) the applicable ENVI Party and, to
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the Parties knowledge, the counterparties thereto are not in material breach of, or default under, any ENVI Material Contract and (iii) no event has occurred that (with or without due notice or lapse of time or both) would result in a material breach of, or default under, any ENVI Material Contract by the applicable ENVI Party or, to the Parties knowledge, the counterparties thereto. ENVI Parties have made available to the Company true and complete copies of all ENVI Material Contracts in effect as of the date hereof (it being understood and agreed, for the avoidance of doubt, that each ENVI Material Contract set forth in any ENVI SEC Report that is publicly available as of the date hereof shall be deemed to have been made available to the Company pursuant to this sentence).
Section 4.10 Investment Company Act. No ENVI Party is an investment company within the meaning of the Investment Company Act.
Section 4.11 Trust Account; Financial Ability. As of the date of this Agreement, ENVI has an amount in cash in the Trust Account equal to at least $207,000,000. The funds held in the Trust Account are (a) invested in United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act, having a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act which invest only in direct U.S. government treasury obligations and (b) held in trust pursuant to that certain Investment Management Trust Agreement, dated January 13, 2021 (the Trust Agreement), between ENVI and Continental Stock Transfer & Trust Company , as trustee (the Trustee). There are no separate agreements, side letters or other agreements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the ENVI SEC Reports to be inaccurate or, that would entitle any Person to any portion of the funds in the Trust Account (other than (i) in respect of deferred underwriting commissions or Taxes, (ii) the Pre-Closing ENVI Shareholders who shall have elected to redeem their ENVI Class A Shares pursuant to the Governing Documents of ENVI or (iii) if ENVI fails to complete a business combination within the allotted time period set forth in the Governing Documents of ENVI and liquidates the Trust Account, subject to the terms of the Trust Agreement, ENVI (in limited amounts to permit ENVI to pay the expenses of the Trust Accounts liquidation, dissolution and winding up of ENVI) and then the Pre-Closing ENVI Shareholders). Prior to the Closing, none of the funds held in the Trust Account are permitted to be released, except in the circumstances described in the Governing Documents of ENVI and the Trust Agreement. As of the date hereof, ENVI has performed all material obligations required to be performed by it, and is not in material breach or default, or delinquent in performance in any material respect or any other respect (claimed or actual) in any material respect, under the Trust Agreement, and, to ENVIs knowledge, no event has occurred which (with due notice or lapse of time or both) would constitute a material default under the Trust Agreement. As of the date of this Agreement, there are no Proceedings pending, or to ENVIs knowledge, threatened with respect to the Trust Account. Since January 13, 2021, ENVI has not released any money from the Trust Account (other than interest income earned on the funds held in the Trust Account as permitted by the Trust Agreement). Upon the consummation of the transactions contemplated hereby (including the distribution of assets from the Trust Account (A) in respect of deferred underwriting commissions or Taxes or (B) to the Pre-Closing ENVI Shareholders who have elected to redeem their ENVI Class A Shares pursuant to the Governing Documents of ENVI, each in accordance with the terms of and as set forth in the Trust Agreement), ENVI shall have no further obligation under either the
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Trust Agreement or the Governing Documents of ENVI to liquidate or distribute any assets held in the Trust Account, and the Trust Agreement shall terminate in accordance with its terms.
Section 4.12 Transactions with Affiliates. Section 4.12 of the ENVI Disclosure Schedules sets forth all Contracts between (a) ENVI, on the one hand, and (b) any employee, officer, director, equityholder or Affiliate of ENVI or any spouse, child or member of the same household of any officer, director or employee of ENVI, ENVI Sponsor, or any of their respective Affiliates, on the other hand (each Person identified in this clause (b), an ENVI Affiliated Party), other than (i) Contracts with respect to an ENVI Affiliated Partys employment with, or the provision of services to, ENVI entered into in the ordinary course of business (including benefit plans, indemnification arrangements and other ordinary course compensation), (ii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.11 (including as set forth in Section 5.11(a)-(r) of the ENVI Disclosure Schedules) or entered into in accordance with Section 5.11, (iii) Contracts with respect to a Persons status as a holder of ENVI Shares and (iv) customary director and officer indemnification agreements that have been made available to the Company or are in the form that is publicly filed with the SEC. No ENVI Affiliated Party (A) owns any material interest in any material asset or property used in the business of ENVI, or (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a material supplier, vendor, partner, customer, lessor or other material business relation of ENVI. All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 4.12 (including, for the avoidance of doubt, pursuant to the second sentence of this Section 4.12) are referred to herein as ENVI Affiliated Party Transactions.
Section 4.13 Litigation. There is (and since its organization, incorporation or formation, as applicable, there has been) no Proceeding by any counterparty not a Party hereto, pending or, to ENVIs knowledge, threatened against or involving any ENVI Party, or, to ENVIs knowledge, pending or threatened against or involving any ENVI Partys managers, officers, directors or employees (in their capacity as such), that, if adversely decided or resolved, has been or would reasonably be expected to be, individually or in the aggregate, material to the ENVI Parties, taken as a whole. None of the ENVI Parties nor any of their respective properties or assets is subject to any material Order. Since ENVIs organization, incorporation or formation, as applicable, through the date hereof, there have been no material Proceedings by any ENVI Party pending against any other Person.
Section 4.14 Compliance with Applicable Law. Each ENVI Party (a) is (and since its organization, incorporation or formation, as applicable, has been) in compliance with all applicable Laws, and (b) as of the date of this Agreement, has not received any written communications or, to ENVIs knowledge, any other communications from a Governmental Entity that alleges that any ENVI Party is not in compliance with any Law or Order, except in each case of except in the case of clauses (a) and (b) as is not and would not reasonably be expected, individually or in the aggregate, material to the ENVI Parties, taken as a whole.
Section 4.15 ENVI Party Activities.
(a) Merger Sub was organized solely for the purpose of entering into this Agreement, the Ancillary Documents, the performance of its covenants and agreements in this
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Agreement and the Ancillary Documents and consummating the transactions contemplated hereby and thereby and has not engaged in any activities or business, other than those incident or related to, or incurred in connection with, its organization, incorporation or formation, as applicable, its continuing corporate (or similar) existence or the negotiation, preparation or execution of this Agreement or any Ancillary Document, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby. ENVI owns 100% of the outstanding Equity Securities of Merger Sub.
(b) Since its incorporation, ENVI has not conducted any business activities other than activities (i) in connection with or incident or related to its incorporation or continuing corporate (or similar) existence, (ii) directed toward the accomplishment of a business or similar combination, including those incident or related to or incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Documents or the consummation of the transactions contemplated hereby or thereby or (iii) those that are administrative, ministerial or otherwise immaterial in nature. Except for this Agreement or the Ancillary Documents, there is no Contract binding upon any ENVI Party or to which any ENVI Party is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of it or its Subsidiaries, any acquisition of property by it or its Subsidiaries or the conduct of business by it or its Subsidiaries (including, in each case, following the Closing).
Section 4.16 Internal Controls: Listing: Financial Statements.
(a) Except as is not required in reliance on exemptions from various reporting requirements by virtue of ENVIs status as an emerging growth company within the meaning of the Securities Act, as modified by the JOBS Act, or smaller reporting company within the meaning of the Exchange Act, since its initial public offering, (i) ENVI has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of ENVIs financial reporting and the preparation of the ENVIs financial statements for external purposes in accordance with GAAP and (ii) ENVI has established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to ensure that material information relating to ENVI is made known to ENVIs principal executive officer and principal financial officer by others within ENVI.
(b) ENVI has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act. There are no outstanding loans or other extensions of credit made by ENVI to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of ENVI.
(c) Since its initial public offering (IPO), except as set forth on Section 4.16(c) of the ENVI Disclosure Schedules, ENVI has complied in all material respects with all applicable listing and corporate governance rules and regulations of Nasdaq. The ENVI Class A Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq. As of the date of this Agreement, there is no Proceeding pending or, to ENVIs knowledge, threatened against ENVI by Nasdaq or the SEC with respect to any intention by such entity to deregister ENVI Class A Shares or prohibit or terminate the listing of ENVI Class A
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Shares on Nasdaq. ENVI has not taken any action that is designed to terminate the registration of ENVI Class A Shares under the Exchange Act.
(d) The ENVI SEC Reports contain true and complete copies of the applicable ENVI Financial Statements. The ENVI Financial Statements (i) fairly present in all material respects the financial position of ENVI as at the respective dates thereof, and the results of its operations, shareholders equity and cash flows for the respective periods then ended (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of notes thereto), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods indicated (except, in the case of any audited financial statements, as may be indicated in the notes thereto) and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of notes thereto, (iii) in the case of the audited ENVI Financial Statements, were audited in accordance with the standards of the PCAOB and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(e) ENVI has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with managements authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for ENVIs and its Subsidiaries assets. ENVI maintains and, for all periods covered by the ENVI Financial Statements, has maintained books and records of ENVI in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of ENVI in all material respects.
(f) Since its incorporation, ENVI has not received any written complaint, allegation, assertion or claim that there is (i) a significant deficiency in the internal controls over financial reporting of ENVI, (ii) a material weakness in the internal controls over financial reporting of ENVI or (iii) fraud, whether or not material, that involves management or other employees of ENVI who have a significant role in the internal controls over financial reporting of ENVI.
Section 4.17 No Undisclosed Liabilities. Except for the Liabilities (a) set forth in Section 4.17 of the ENVI Disclosure Schedules, (b) ENVI Expenses incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Document, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby (it being understood and agreed that the expected third parties that are, as of the date hereof, entitled to fees, expenses or other payments in connection with the matters described in this clause (b) shall be set forth on Section 4.17 of the ENVI Disclosure Schedules), (c) incurred in connection with or incident or related to an ENVI Partys organization, incorporation or formation, as applicable, or continuing corporate (or similar) existence of either ENVI Party, in each case, which are immaterial in nature, (d) that are immaterial and incurred in connection with activities that are administrative or ministerial in nature, (e) set forth on (or in the notes to) the balance sheet of ENVI contained in the Quarterly Report on Form 10-Q, filed with the SEC on May 24, 2021 (the Latest ENVI Balance Sheet),
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(f) that have arisen since the date of the Latest ENVI Balance Sheet in the ordinary course of business (excluding any Liabilities directly or indirectly related to a breach of Contract, breach of warranty, tort, Proceeding or violation of, or non-compliance with Law), (g) that are first incurred after the date hereof, expressly permitted pursuant to the terms Section 5.11 (including as set forth in Section 5.11(a)-(r) of the ENVI Disclosure Schedules), or incurred in accordance with Section 5.11 or (h) that are not, and would not reasonably be expected to be, individually or in the aggregate, material to the ENVI Parties, taken as a whole, the ENVI Parties do not have any Liabilities.
Section 4.18 Employees. Other than any officers as described in the ENVI SEC Reports, ENVI and Merger Sub have never employed any employees or retained any contractors. ENVI and Merger Sub have never maintained, sponsored, contributed to or had any direct liability under, 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 compensation, 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 and any Ancillary Document nor the consummation of the transactions contemplated by this Agreement will (i) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any director, officer or employee of ENVI, or (ii) result in the acceleration of the time of payment or vesting of any such benefits. The transactions contemplated by this Agreement shall not be the direct or indirect cause of any amount paid or payable by the ENVI, Merger Sub or any of their Affiliates being classified as an excess parachute payment under Section 280G of the Code or the imposition of any additional Tax under Section 4999 or 409A(a) (1)(B) of the Code. There is no Contract, agreement, plan or arrangement to which ENVI or Merger Sub is a party which requires payment by any party of a Tax gross-up or Tax reimbursement payment to any person, including under Section 4999 or 409A of the Code.
Section 4.19 Tax Matters.
(a) Each ENVI Party has prepared and filed all material Tax Returns required to have been filed by or with respect to it, all such Tax Returns are true and complete in all material respects, and each ENVI Party has paid all material Taxes required to have been paid by or with respect to it regardless of whether shown on a Tax Return.
(b) Each ENVI Party has withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid by it in connection with amounts paid or owing to any employee, individual independent contractor, other service provider, equity interest holder or other Person.
(c) No ENVI Party is currently the subject of a Tax audit or examination or similar Proceeding or has been informed in writing of the commencement or anticipated commencement of any Tax audit or examination or similar Proceeding, which has not been resolved or completed, in each case with respect to material Taxes. No assessment, deficiency or
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similar claim for material Taxes with respect to any ENVI Party has been proposed or assessed by any Tax Authority.
(d) No ENVI Party has consented to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business.
(e) No closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Tax Authority with respect to any ENVI Party, which agreement or ruling would be effective after the Closing Date.
(f) None of the ENVI Parties is or has been a party to any listed transaction as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. income Tax Law).
(g) There are no Liens for material Taxes on any assets of the ENVI Parties, other than Liens for Taxes not yet due and payable.
(h) During the two (2)-year period ending on the date of this Agreement, no ENVI Party was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code).
(i) No ENVI Party (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was ENVI) or (ii) has any material Liability for the Taxes of any other Person under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. Tax Law), as a transferee or successor or by Contract or otherwise (other than liabilities pursuant to a Contract entered into in the ordinary course of business that is not primarily related to Taxes).
(j) No written claims have ever been made by any Tax Authority in a jurisdiction where an ENVI Party does not file a Tax Return claiming that such ENVI Party is or may be subject to taxation by that jurisdiction that would be reported on or the subject of such Tax Return, which claims have not been resolved or withdrawn.
(k) No ENVI Party is a party to any Tax allocation, Tax sharing, Tax indemnity or similar agreement (other than one that is included in a Contract entered into in the ordinary course of business that is not primarily related to Taxes) and no ENVI Party is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal income Tax purposes.
(l) No ENVI Party has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized. Each ENVI Party is tax resident (and subject to income Tax) only in its jurisdiction of organization, incorporation or formation, as applicable.
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(m) No ENVI Party has ever owned, directly or indirectly, any Company Share.
(n) Merger Sub is a wholly owned, first-tier Subsidiary of ENVI and was formed solely to effect the Merger.
(o) No ENVI Party has any present plan or intention to sell or otherwise dispose of any material assets of the Company acquired in the Merger, except for dispositions made in the ordinary course of business or transfers described in Section 368(a)(2)(C) of the Internal Revenue Code and the Treasury Regulations promulgated thereunder.
(p) It is the present intention of the ENVI Parties (i) to continue or cause the continuation of at least one significant historic business line (within the meaning of Treasury Regulations Section 1.368-1(d)(2)) of the Company or (ii) to use or cause the use of a significant portion of the Companys historic business assets (within the meaning of Treasury Regulations Section 1.368-1(d)(3)) in a business.
(q) As of the date of this Agreement, to the knowledge of ENVI, none of the ENVI Parties has taken or agreed to take any action, in each case not contemplated by this Agreement and/or any Ancillary Documents that would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment. To the knowledge of ENVI, no facts or circumstances exist as of the date of this Agreement, in each case not contemplated by this Agreement or any Ancillary Document, that would reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment.
(r) No ENVI Party will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any period (or any portion thereof) beginning after the Closing Date as a result of any installment sale or other transaction occurring prior to the Closing, any accounting method change or agreement with any Tax Authority filed or made prior to the Closing or use of an improper method of accounting prior to the Closing, any prepaid amount received prior to the Closing or any intercompany transaction or excess loss account described in Section 1502 of the Code (or any corresponding provision of state, local or foreign Tax law) occurring or existing prior to the Closing. No Group Company has any liability in connection with Section 965 of the Code, or has ever owned any Person organized in a jurisdiction located outside the United States.
Section 4.20 CFIUS Foreign Person Status. No ENVI Party is a foreign person or a foreign entity, as defined in Section 721 of the Defense Production Act of 1950, including all implementing regulations thereof (the DPA). No ENVI Party is controlled by a foreign person, as defined in the DPA. No ENVI Party permits any foreign person affiliated with ENVI, whether affiliated as a limited partner or otherwise, to obtain through ENVI any of the following with respect to ENVI: (i) access to any material nonpublic technical information (as defined in the DPA) in the possession of ENVI; (ii) membership or observer rights on the Board of Directors or equivalent governing body of ENVI or the right to nominate an individual to a position on the Board of Directors or equivalent governing body of ENVI; (iii) any involvement, other than through the voting of shares, in the substantive decision-making of ENVI regarding (x) the use, development, acquisition, or release of any critical technology (as defined in the DPA), (y) the use, development, acquisition, safekeeping, or release of sensitive personal data (as defined in
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the DPA) of U.S. citizens maintained or collected by ENVI, or (z) the management, operation, manufacture, or supply of covered investment critical infrastructure (as defined in the DPA); or (iv) control of the Company (as defined in the DPA).
Section 4.21 Compliance with International Trade & Anti-Corruption Laws.
(a) Since ENVIs incorporation, neither ENVI nor, ENVIs respective officers, directors or employees or, to ENVIs knowledge, any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing, is or has been, (i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity; (ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions and Export Control Laws; (iii) an entity owned, directly or indirectly, by one or more Persons described in clause (i) or (ii); or (iv) otherwise engaging in dealings with or for the benefit of any Person described in clauses (i)-(iii) or any country or territory which is or has, since ENVIs incorporation, been the subject of or target of any Sanctions and Export Control Laws (at the time of this Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea, Venezuela, Sudan and Syria).
(b) Since ENVIs incorporation, none of the ENVI Parties, any of their respective officers or directors or, to ENVIs knowledge, any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing has (i) made, offered, promised, paid or received any unlawful bribes, kickbacks or other similar payments to or from any Person, (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign political party or candidate or (iii) otherwise made, offered, received, authorized, promised or paid any improper payment under any Anti-Corruption Laws.
Section 4.22 Change of Control Payments. Section 4.22 of the ENVI Disclosure Schedules sets forth a list of all ENVI Change of Control Payments as of the date of this Agreement.
Section 4.23 PIPE Financing. ENVI has delivered to the Company a true, correct and complete copy of the fully executed PIPE Subscription Agreements as in effect as of the date hereof, each of which is substantially in the form as Exhibit B, pursuant to which the PIPE Investors have collectively committed, on the terms and subject to the conditions therein, to purchase an aggregate of 10,525,000 shares of ENVI Common Stock for $10.00 per share. Each of the PIPE Subscription Agreements is, as of the date hereof, in full force and effect (assuming, with respect to each PIPE Investor, that each such PIPE Subscription Agreement has been duly authorized, executed and delivered by each applicable PIPE Investor), and as of the date hereof, none of the PIPE Subscription Agreements has been withdrawn, rescinded or terminated or otherwise amended or modified in any respect, and, to ENVIs knowledge, no such amendment or modification is contemplated as of the date hereof. Except as has not and would not reasonably be expected to cause any of the conditions to a PIPE Investors obligation to purchase the ENVI Shares under the applicable PIPE Subscription Agreement to not be satisfied, ENVI is not in breach of any of the representations or warranties of ENVI, or terms or conditions set forth in any of the PIPE Subscription Agreements. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a breach, default or failure to satisfy any condition precedent set forth therein (assuming the accuracy of the representations
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and warranties of the Company set forth in this Agreement and, with respect to each PIPE Investor, the accuracy of the PIPE Investors set forth in each PIPE Subscription Agreement). As of the date hereof, assuming the accuracy of the representations and warranties contained in Article 3 in all material respects and, with respect to each PIPE Investor, the representations and warranties of each PIPE Investor in the applicable PIPE Subscription Agreement in all material respects, the performance by the Company of its covenants, agreements and obligations to be performed prior to the Closing hereunder in all material respects and, with respect to each PIPE Investor, the performance by each PIPE Investor of its covenants, agreements and obligations under the applicable PIPE Subscription Agreement in all material respects, ENVI (i) has no knowledge that any event has occurred that (with or without notice or lapse of time, or both) would constitute a breach or default under any of the PIPE Subscription Agreements, (ii) has no knowledge of any fact, event or other occurrence that makes any of the representations or warranties of ENVI in any of the PIPE Subscription Agreements inaccurate in any material respect and (iii) has no knowledge that any of the conditions to the consummation of the transactions contemplated by the PIPE Subscription Agreements will not be satisfied when required thereunder or that the transaction proceeds contemplated by the PIPE Subscription Agreements will not be made available when required thereunder. As of the date of this Agreement, no PIPE Investor has notified ENVI in writing of its intention to terminate all or any portion of the Subscription Amount (as defined in the PIPE Subscription Agreements) or not to provide the financing contemplated thereunder. Other than as set forth in the PIPE Subscription Agreements delivered to the Company in connection with the execution of this Agreement, (i) there are no conditions precedent or contingencies to the obligations of the parties under the PIPE Subscription Agreements to make the full amount of the PIPE Financing available to ENVI on the terms therein, and (ii) to the knowledge of ENVI, there are no side letters or other understandings or Contracts (written, oral or otherwise) related to the PIPE Subscription Agreements or the PIPE Financing, other than those entered into with the placement agents of the PIPE Financing.
Section 4.24 Investigation; No Other Representations.
(a) Each ENVI Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects, of the Group Companies and (ii) it has been furnished with or given access to such documents and information about the Group Companies and their respective businesses and operations as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby.
(b) In entering into this Agreement and the Ancillary Documents to which it is or will be a party, each ENVI Party has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 3 and in the Ancillary Documents to which it is or will be a party and no other representations or warranties of the Company or any other Person, either express or implied, and each ENVI Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 3 and in the Ancillary Documents to which it is or will be a party, neither the Company nor any other Person makes or has made any
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representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.
Section 4.25 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE COMPANY OR ANY OF ITS REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE 4 OR THE ANCILLARY DOCUMENTS, NONE OF THE ENVI PARTIES OR ANY OTHER PERSON MAKES, AND EACH ENVI PARTY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF THE ENVI PARTIES THAT HAVE BEEN MADE AVAILABLE TO THE COMPANY OR ANY OF ITS REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF THE ENVI PARTIES BY OR ON BEHALF OF THE MANAGEMENT OF ANY ENVI PARTY OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY DOCUMENTS, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY THE COMPANY OR ANY OF ITS AFFILIATES OR REPRESENTATIVES IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE 4 OR THE ANCILLARY DOCUMENTS, IT IS UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY OR ON BEHALF OF ANY ENVI PARTY ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF ANY ENVI PARTY, AND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY THE COMPANY OR ANY OF ITS AFFILIATES OR REPRESENTATIVES IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
ARTICLE 5
COVENANTS
Section 5.1 Conduct of Business of the Company.
(a) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law or Pandemic Measure, as set forth on
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Section 5.1(a) of the Company Disclosure Schedules, or as consented to in writing by ENVI (such consent not to be unreasonably withheld, conditioned or delayed), (i) to use commercially reasonable efforts to operate the business of the Group Companies in the ordinary course in all material respects and (ii) use commercially reasonable efforts to maintain and preserve intact in all material respects the business organization, assets, properties and material business relations of the Group Companies, taken as a whole.
(b) Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.1(b) of the Company Disclosure Schedules or as consented to in writing by ENVI (such Consent, other than in the case of Section 5.1(b)(i), Section 5.1(b)(ii)(A), Section 5.1(b)(iv)(A), Section 5.1(b)(x), Section 5.1(b)(xiii), or Section 5.1(b)(xiv) (to the extent related to any of the foregoing) not to be unreasonably withheld, conditioned or delayed), not do any of the following:
(i) declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any Equity Securities of any Group Company or repurchase or redeem any outstanding Equity Securities of any Group Company, other than dividends or distributions, declared, set aside or paid by any of the Companys Subsidiaries to the Company or any Subsidiary that is, directly or indirectly, wholly owned by the Company;
(ii) (A) merge, consolidate, combine or amalgamate any Group Company with any Person or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof;
(iii) adopt any amendments, supplements, restatements or modifications to any Group Companys Governing Documents or the Company Shareholders Agreement;
(iv) (A) sell, assign, abandon, lease, exclusively license or otherwise dispose of any material assets or properties of the Group Companies, other than inventory or obsolete equipment in the ordinary course of business, or (B) subject any material assets or properties of the Group Companies to any new Lien (other than any Permitted Liens);
(v) transfer, issue, sell, grant or otherwise dispose of, or subject to a Lien, (A) any Equity Securities of any Group Company or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating any Group Company to issue, deliver or sell any Equity Securities of any Group Company, other than, in each case, (x) the issuance of Company Common Shares upon the exercise of any Company Options outstanding as of the date of this Agreement in accordance with the terms of the Company
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Equity Plan and the underlying grant, award or similar agreement, (y) the issuance of Company Series A Preferred Shares or Company Series D Preferred Shares upon the exercise of any Company Warrants outstanding in accordance with the terms of the applicable agreement governing the terms of such Company Warrants and (z) the issuance of Company Common Shares upon conversion of Company Preferred Shares in accordance with the Governing Documents of the Company;
(vi) incur, create or assume any Indebtedness, other than ordinary course trade payables, or guarantee any Liability of any Person;
(vii) (A) amend or modify, in either case in a manner materially adverse to the Company, or terminate any Material Contract of the type described in Section 3.7(a)(iv), Section 3.7(a)(v), Section 3.7(a)(ix), Section 3.7(a)(x) or Section 3.7(a)(xi) (such types of Material Contracts, collectively, the Designated Material Contracts) (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any Designated Material Contract pursuant to its terms or entering into additional work or purchase orders pursuant to, and in accordance with the terms of, any Designated Material Contract), (B) waive any material benefit or right under any Designated Material Contract or (C) enter into any Contract that would, if in effect as of the date hereof, have constituted a Designated Material Contract or take any of the actions described in clause (A) or (B) with respect to any Contract entered into after the date hereof that would, if in effect as of the date hereof, have constituted a Designated Material Contract;
(viii) make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person other than (A) intercompany loans or capital contributions between the Company and any of its wholly owned Subsidiaries, and (B) the reimbursement of expenses of employees or advancements of expenses, in each case, in the ordinary course of business;
(ix) except (x) as required under the terms of any Employee Benefit Plan set forth on Section 3.11(a) of the Company Disclosure Schedules of any Group Company, or (y) in the ordinary course of business consistent with past practice (it being understood and agreed, for the avoidance of doubt, that in no event shall the exception in this clause (y) be deemed or construed as permitting any Group Company to take any action that is not permitted by any other provision of this Section 5.1(b)) (A) amend or modify in any material respect, adopt or enter into any CBA, any Employee Benefit Plan of any Group Company or any benefit or compensation plan, policy, program or Contract that would be an Employee Benefit Plan if in effect as of the date of this Agreement (excluding any employment or consulting agreements entered into in the ordinary course of business with any newly hired or newly engaged service providers to any Group Company each of whose base salary would not exceed, on an annualized basis $400,000 per year), (B) materially increase the compensation or benefits payable to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company, (C) take any action to accelerate any payments (whether individually or in the aggregate), right to payment or
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benefit, or the funding of any payment or benefit, right to material payments (whether individually or in the aggregate), payable or to become payable to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company other than to the extent required by the Company Equity Plans, or (D) waive or release any noncompetition, nonsolicitation, no-hire, nondisclosure or other restrictive covenant obligation of any current or former director, officer, employee, individual independent contractor or other service provider of any Group Company;
(x) make, change or revoke any material election concerning Taxes other than in the ordinary course of business consistent with past practice, change any annual Tax accounting period, surrender any right to claim a material Tax refund, materially amend any filed material Tax Return, file any material Tax Return inconsistent with past practice in any material respect, enter into any Tax allocation, Tax sharing, Tax indemnity or similar agreement (other than one that is included in a Contract entered into in the ordinary course of business that is not primarily related to Taxes), enter into any material Tax closing agreement, settle any material Tax claim or assessment, or Consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, other than any such extension or waiver that is obtained in the ordinary course of business;
(xi) enter into any settlement, conciliation or similar Contract with any Person the performance of which would involve the payment by the Group Companies in excess of $1,000,000, in the aggregate, or that imposes, or by its terms will impose at any point in the future, any material, non-monetary obligations on any Group Company (or ENVI or any of its Affiliates after the Closing);
(xii) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction (other than, for the avoidance of doubt, the transactions expressly contemplated by this Agreement) involving any Group Company;
(xiii) change any Group Companys methods of accounting in any material respect, other than changes that are made in accordance with PCAOB standards;
(xiv) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders fee or other commission in connection with the transactions contemplated by this Agreement or any Ancillary Document;
(xv) make any Company Change of Control Payment that is not set forth on Section 5.1(b)(xiv) of the Company Disclosure Schedules or make any material payment with respect to a Company Affiliated Party Transaction that is not set forth on Section 5.1(b)(xiv) of the Company Disclosure Schedules; or
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(xvi) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.1.
Notwithstanding anything in this Section 5.1 or this Agreement to the contrary, (a) nothing set forth in this Agreement shall give ENVI, directly or indirectly, the right to control or direct the operations of the Group Companies prior to the Closing, (b) any action taken, or omitted to be taken, by any Group Company to the extent such act or omission is reasonably determined by the Company, based on the advice of outside legal counsel, to be necessary to comply with any Law, Order, directive, pronouncement or guideline issued by a Governmental Entity providing for business closures, sheltering-in-place or other restrictions that relates to, or arises out of, COVID-19 shall in no event be deemed to constitute a breach of Section 5.1 and (c) any action taken, or omitted to be taken, by any Group Company to the extent that the Company Board reasonably determines that such act or omission is necessary in response to COVID-19 to maintain and preserve in all material respects the business organization, assets, properties and material business relations of the Group Companies, taken as a whole, shall not be deemed to constitute a breach of Section 5.1; provided, however, (i) in the case of each of clause (b) and (c), the Company shall give ENVI prior written notice of any such act or omission to the extent reasonably practicable, which notice shall describe in reasonable detail the act or omission and the reason(s) that such act or omission is being taken, or omitted to be taken, pursuant to clause (b) or (c) and, in the event that it is not reasonably practicable for the Company to give the prior written notice described in this clause (i), the Company shall instead give such written notice to ENVI promptly after such act or omission and (ii) in no event shall clause (b) or (c) be applicable to any act or omission of the type described in Section 5.1(b)(i), Section 5.1(b)(ii), Section 5.1(b)(iii), Section 5.1(b)(iv), Section 5.1(b)(v), Section 5.1(b)(vii), Section 5.1(b)(xi), Section 5.1(b)(xii), Section 5.1(b)(xiii), Section 5.1(b)(xiv), Section 5.1(b)(xv), or Section 5.1(b)(xvi) (to the extent related to any of the foregoing).
Section 5.2 Efforts to Consummate; Transaction Litigation.
(a) Subject to the terms and conditions herein provided, each of the Parties shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the transactions contemplated by this Agreement (including (i) by using commercially reasonable efforts with respect to the satisfaction, but not waiver, of the closing conditions set forth in Article 6) and, in the case of any Ancillary Document to which such Party is contemplated hereby to be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, and (ii) the Company taking, or causing to be taken, all actions necessary or advisable to cause the agreements set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated effective as of the closing without any further obligations or Liabilities to the Company or any of its Affiliates (including the other Group Companies and, from and after the Effective Time, ENVI). Without limiting the generality of the foregoing, each of the Parties shall, and each of the Parties shall cause its controlled Affiliates to, use commercially reasonable efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Ancillary Documents. Each Party shall pay fifty percent (50%) of the HSR Act filing fees, any filing fees or other costs payable to a Governmental Entity in connection with the preparation, filing or mailing
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of the Registration Statement / Proxy Statement and any printing, mailing or similar fees or costs in connection with the preparation, filing or mailing of the Registration Statement / Proxy Statement. Subject to Section 8.6, except with respect to the HSR Act filing fees, any filing fees or other costs payable to a Governmental Entity in connection the preparation, filing or mailing of the Registration Statement / Proxy Statement and any printing, mailing or similar fees or costs in connection with the preparation, filing or mailing of the Registration Statement / Proxy Statement (which will be allocated as indicated above), each Party shall bear its out-of-pocket costs and expenses in connection with the preparation and receipt of any such Consents, including the legal and related expenses in connection with the preparation and submission of filings and other materials required under the Antitrust Laws. Each Party shall (i) make all required filings pursuant to the Antitrust Laws with respect to the transactions contemplated by this Agreement promptly (and in any event, with respect to the HSR Act, within ten (10) Business Days) following the date of this Agreement (unless the Parties otherwise agree in writing to a different date), and (ii) respond as promptly as reasonably practicable to any requests by any Governmental Entity for additional information and documentary material that may be requested pursuant to the Antitrust Laws. ENVI shall promptly inform the Company of any communication between any ENVI Party, on the one hand, and any Governmental Entity, on the other hand, and the Company shall promptly inform ENVI of any communication between the Company, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of the transactions contemplated by this Agreement or any Ancillary Document. Without limiting the foregoing, (a) the Parties agree to request early termination of the applicable waiting period under the HSR Act, and (b) each Party and their respective Affiliates shall not extend any waiting period, review period or comparable period under the Antitrust Laws or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of ENVI and the Company. Nothing in this Section 5.2 obligates any Party or any of its Affiliates to agree to (i) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, businesses, assets or facilities of any Group Company or any entity, business, facility or asset of such Party or any of its Affiliates, (ii) terminate, amend or assign existing relationships and contractual rights or obligations, (iii) amend, assign or terminate existing licenses or other agreements, (iv) enter into new licenses or other agreements or (v) undertake any other remedy, condition or commitment of any kind. No Party shall agree to any of the measures set forth in the immediately preceding sentence with respect to such Party or its Affiliates or with respect to any other Party or any of its Affiliates, except with ENVIs and the Companys prior written consent (not to be unreasonably withheld, conditioned or delayed).
(b) From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, the ENVI Parties, on the one hand, and the Company, on the other hand, shall give counsel for the Company (in the case of any ENVI Party) or ENVI (in the case of the Company), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement or the Ancillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with, in the case of any ENVI Party, the Company, or, in the case of the Company, ENVI in advance and, to the extent not prohibited by such Governmental Entity, gives, in the case of any ENVI Party, the
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Company, or, in the case of the Company, ENVI, the opportunity to attend and participate in such meeting or discussion.
(c) Notwithstanding anything to the contrary in the Agreement, in the event that this Section 5.2 conflicts with any other covenant or agreement in this Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.
(d) From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, ENVI, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly (i) of any event which would reasonably be expected to cause the conditions set forth in Article 6 to fail or (ii) after learning of any shareholder demands or other shareholder Proceedings (including derivative claims) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the Transaction Litigation) commenced against, in the case of ENVI, any of the ENVI Parties or any of their respective Representatives (in their capacity as a Representative of an ENVI Party) or, in the case of the Company, any Group Company or any of their respective Representatives (in their capacity as a Representative of a Group Company). ENVI and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the others advice with respect to any such Transaction Litigation and (iv) reasonably cooperate with each other; provided, however, that in no event shall (x) ENVI, any other ENVI Party or any of their respective Representatives settle or compromise any Transaction Litigation without the prior written consent of theCompany (not to be unreasonably withheld, conditioned or delayed), or (y) any Group Company or any of their respective Representatives settle or compromise any Transaction Litigation without the prior written consent of ENVI (not to be unreasonably withheld, conditioned or delayed).
Section 5.3 Confidentiality and Access to Information.
(a) The Parties hereby acknowledge and agree that the information being provided in connection with this Agreement and the consummation of the transactions contemplated hereby is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference. Notwithstanding the foregoing or anything to the contrary in this Agreement, in the event that this Section 5.3(a) or the Confidentiality Agreement conflicts with any other covenant or agreement contained in this Agreement or any Ancillary Document that contemplates the disclosure, use or provision of information or otherwise, then such other covenant or agreement contained in this Agreement or such Ancillary Document, as applicable, shall govern and control to the extent of such conflict.
(b) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, the Company shall provide, or cause to be provided, to ENVI and its Representatives during normal business hours reasonable access to the directors, officers, books and records of the Group Companies (in a manner so as to not interfere with the normal business
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operations of the Group Companies). Notwithstanding the foregoing, none of the Group Companies shall be required pursuant to this Section 5.3(b) to provide, or caused to be provided, to ENVI or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any Group Company is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of any Group Company with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to any Group Company under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (D), the Company shall use, and shall cause the other Group Companies to use, commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if any Group Company or any of their respective Affiliates or Representatives, on the one hand, and any ENVI Party, the ENVI Sponsor or any of their respective Affiliates or Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that the Company shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law.
(c) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, ENVI shall provide, or cause to be provided, to the Company and its Representatives during normal business hours reasonable access to the directors, officers and books and records of the ENVI Parties (in a manner so as to not interfere with the normal business operations of the ENVI Parties). Notwithstanding the foregoing, ENVI shall not be required pursuant to this Section 5.3(c) to provide, or cause to be provided to, the Company or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any ENVI Party is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of any ENVI Party with respect to confidentiality, nondisclosure or privacy or (D) jeopardize protections afforded to any ENVI Party under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (D), ENVI shall use, and shall cause the other ENVI Parties to use, commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if an ENVI Party, the ENVI Sponsor or any of their respective Affiliates or Representatives, on the one hand, and any Group Company or any of their respective Affiliates or Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that ENVI shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law.
Section 5.4 Public Announcements.
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(a) Subject to Section 5.4(b), Section 5.7 and Section 5.8, none of the Parties or any of their respective Representatives shall issue any press releases or make any public announcements with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the Company and ENVI; provided, however, that each Party, the ENVI Sponsor and their respective Representatives may make any such announcement or other communication (i) if such press release, announcement or other communication is required by applicable Law, in which case (A) prior to the Closing, the disclosing Person shall, to the extent permitted by such applicable Law, use commercially reasonable efforts to consult with the Company, if the disclosing Person is any ENVI Party, the ENVI Sponsor or any of their respective Representatives, or ENVI, if the disclosing Person is the Company or any of its Representatives, and give the Company or ENVI, as applicable, the opportunity to review such announcement or communication and comment thereon and the disclosing Person shall consider such comments in good faith, or (B) after the Closing, the disclosing Person and/or its Representatives, as applicable, shall, to the extent permitted by such applicable Law, use commercially reasonable efforts to consult with ENVI and give ENVI the opportunity to review such announcement or communication and comment thereon and the disclosing Person shall consider such comments in good faith, (ii) to the extent such press release, announcement or other communication contains only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 5.4 and (iii) to Governmental Entities in connection with any Consents required to be obtained or made under this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.
(b) The initial press release concerning this Agreement and the transactions contemplated hereby shall be a joint press release in the form agreed by the Company and ENVI prior to the execution of this Agreement and such initial press release (the Signing Press Release) shall be released as promptly as reasonably practicable after the execution of this Agreement on the day thereof. Promptly after the execution of this Agreement (but in any event within four (4) Business Days after the date of this Agreement), ENVI shall file a current report on Form 8-K (the Signing Filing) with the Signing Press Release and a description of this Agreement as required by, and in compliance with, the Securities Laws, which the Company shall have the opportunity to review and comment upon prior to filing and ENVI shall consider such comments in good faith. The Company, on the one hand, and ENVI, on the other hand, shall mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or ENVI, as applicable) a press release announcing the consummation of the transactions contemplated by this Agreement (the Closing Press Release) prior to the Closing, and, on the Closing Date (or such other date as may be mutually agreed to in writing by ENVI and the Company prior to the Closing), the Parties shall cause the Closing Press Release to be released. Promptly after the Closing (but in any event within four (4) Business Days after the Closing), ENVI shall file a current report on Form 8-K (the Closing Filing) with the Closing Press Release and a description of the Closing as required by Securities Laws, which Closing Filing shall be mutually agreed upon by the Company and ENVI prior to the Closing (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or ENVI, as applicable). In connection with the preparation of each of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing, each Party shall, upon written request by any other Party, furnish such other Party with all information concerning itself, its directors, officers and equityholders, and such other matters as may be reasonably necessary for such press release or filing.
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Section 5.5 Tax Matters.
(a) Tax Treatment.
(i) The Parties intend that the Merger shall constitute a transaction treated as a reorganization within the meaning of Section 368(a) of the Code, and each Party shall, and shall cause its respective Affiliates to, use commercially reasonable efforts to cause the Merger to so qualify (provided, for the avoidance of doubt, that nothing in this Section 5.5(a)(i) shall be interpreted to require any party to modify the economic terms of the business combination contemplated by this Agreement or take similar actions). To the fullest extent permitted by applicable Law, the Parties shall file all Tax Returns consistent with and take no position inconsistent with (whether in audits, Tax Returns or otherwise) the Intended Tax Treatment, unless required to do so pursuant to a determination within the meaning of Section 1313(a) of the Code. Each of the Parties agrees to (x) promptly notify all other Parties of any challenge to the Intended Tax Treatment by any Governmental Entity, and (y) reasonably cooperate with each other and their respective counsel to document and provide factual support for the Intended Tax Treatment, including by reasonably cooperating to provide factual support and customary representation letters.
(ii) The Parties hereby adopt this Agreement as a plan of reorganization within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). The Parties shall not, and shall not permit or cause their respective Affiliates to, take any action not contemplated by this Agreement or any Ancillary Document, or knowingly fail to take any action required by this Agreement or any Ancillary Document, which action or failure to act prevents or impedes, or would reasonably be expected to prevent or impede the Merger from qualifying for the Intended Tax Treatment. Each Party shall promptly notify the other Party in writing if, before the Closing Date, such Party knows or has reason to believe that there is a reasonable likelihood that the Merger may not qualify for the Intended Tax Treatment (and whether the terms of this Agreement could be reasonably amended in a manner consistent with the provisions of Section 5.5(a)(i) in order to facilitate the Merger qualifying for the Intended Tax Treatment). If, after the date hereof but prior to the Closing Date, the Company and ENVI mutually determine (acting reasonably and in good faith) that the Merger is not expected to qualify as a reorganization within the meaning of Section 368(a) of the Code, the parties to this Agreement shall use commercially reasonable efforts to restructure the transactions contemplated hereby (such restructured transactions, the Alternative Transaction Structure) in a manner that is reasonably expected to cause the Alternative Transaction Structure to so qualify, including, if applicable, with respect to the Merger, by adding a merger to take place immediately after the Merger whereby the Surviving Company in the Merger would merge with and into ENVI or a wholly owned Subsidiary of ENVI that is a limited liability company disregarded as separate from ENVI for U.S. federal income tax purposes, with the new wholly owned Subsidiary of ENVI being the surviving company in such merger. If, in connection with the preparation and filing of the Registration
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Statement /Proxy Statement, the SEC requests or requires that a tax opinion be prepared and submitted in connection therewith with respect to the qualification of the Merger as a reorganization and/or the consequences of the transactions contemplated hereby to the holders of securities of the Company, then Foley Hoag LLP or other counsel to the Company shall furnish such opinion, subject to customary assumptions and limitations, as requested or required by the SEC with respect to such matters (and in no event will Latham & Watkins LLP or counsel to ENVI be required to furnish such opinion). The Parties will reasonably cooperate in connection with the provision of any opinions required in connection with the transactions contemplated hereby, including in connection with the provision of customary factual representation letters.
(b) Tax Matters Cooperation. Each of the Parties shall (and shall cause their respective Affiliates to) cooperate fully, as and to the extent reasonably requested by another Party, in connection with the filing of relevant Tax Returns, and any Tax Proceeding. Such cooperation shall include the retention and (upon the other Partys request) making available (with the right to make copies) of records and information reasonably relevant to any Tax Proceeding, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) Transfer Taxes. All transfer, documentary, sales, use, stamp, value added, goods and services, excise, registration and other similar Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) (Transfer Taxes) arising in connection with the Merger shall be borne by the Persons responsible for such Taxes under applicable Law. Each Party shall reasonably cooperate in providing any certificates or other documents required to reduce the applicable Transfer Taxes and, if and to the extent required by applicable Law, shall join the other Party(ies) in the execution of any Tax Return in respect thereof.
Section 5.6 Company Exclusive Dealing.
(a) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause the other Group Companies and its and their respective officers and directors to not and shall use its commercially reasonable efforts to cause the other Representatives of the Group Companies to not, directly or indirectly: (i) solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding (whether or not binding) regarding a Company Acquisition Proposal; (iv) other than in connection with the transactions contemplated pursuant to this Agreement or the Ancillary Documents, make any filings or submissions with the SEC in connection with a public offering of any Equity Securities, or other securities, of any Group Company; or (v) otherwise cooperate in any way with, or assist or participate in any negotiations or discussions with, any Person in connection any Company Acquisition Proposal or a transaction of the type in clause (iv) (other than to inform such Person of the existence of the Companys obligations under this Section 5.6).
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(b) The Company agrees to (i) notify ENVI promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (ii) keep ENVI reasonably informed on a current basis of any modifications to such offer or information. The Company shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than ENVI) conducted prior to or as of the date hereof by the Company or any of the Group Companies, and the Company will, and will cause the other Group Companies and its and their Representatives, to cease and cause to be terminated any and all existing activities, discussions or negotiations, that could reasonably be expect to lead to a Company Acquisition Proposal, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of the Company or any of the Group Companies for the purpose of permitting such Persons to evaluate a potential Company Acquisition Proposal.
Section 5.7 ENVI Exclusive Dealing.
(a) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the ENVI Parties shall not, and shall cause their respective officers and directors not to, and shall cause the ENVI Sponsor and its controlled Affiliates not to, and shall use their commercially reasonable efforts to cause their other Affiliates and the other Representatives of the ENVI Parties, the ENVI Sponsor and their controlled Affiliates not to, directly or indirectly: (i) solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, an ENVI Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, an ENVI Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding (whether or not binding) regarding an ENVI Acquisition Proposal; (iv) make any filings or submissions with the SEC in connection with any offering of any Equity Securities, or other securities, of any ENVI Party, other than any such filings or submissions required or otherwise expressly contemplated by this Agreement; or (v) otherwise cooperate in any way with, or assist or participate in any negotiations or discussions with, any Person in connection any ENVI Acquisition Proposal or a transaction of the type in clause (iv) (other than to inform such Person of the existence of the ENVI Parties obligations under this Section 5.7).
(b) ENVI agrees to (i) notify the Company promptly upon receipt of any ENVI Acquisition Proposal by any ENVI Party or ENVI Sponsor, and to describe the material terms and conditions of any such ENVI Acquisition Proposal in reasonable detail (including the identity of the Persons making such ENVI Acquisition Proposal) and (ii) keep the Company reasonably informed on a current basis of any modifications to such offer or information. ENVI shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons (other than the Group Companies) conducted prior to or as of the date hereof by any of the ENVI Parties or ENVI Sponsor, and will cause its Representatives to cease and cause to be terminated any and all existing activities, discussions or negotiations, that could reasonably be expect to lead to an ENVI Acquisition Proposal, and shall, as promptly as practicable, terminate access by each such Person and its Representatives to any online or other
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data rooms containing any non-public information in respect of ENVI or any of its Subsidiaries for the purpose of permitting such Persons to evaluate a potential ENVI Acquisition Proposal.
Section 5.8 Preparation of Registration Statement / Proxy Statement. As promptly as reasonably practicable following the date of this Agreement, ENVI and the Company shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either of ENVI or the Company, as applicable), and ENVI shall file with the SEC, the Registration Statement / Proxy Statement (it being understood that the Registration Statement / Proxy Statement shall include a proxy statement / prospectus (the Proxy Statement / Prospectus) of ENVI which will be included therein and which will be used for the ENVI Shareholders Meeting to adopt and approve the Transaction Proposals, provide its applicable shareholders with the opportunity to elect to effect the ENVI Shareholder Redemption, and other matters reasonably related to the Transaction Proposals, all in accordance with and as required by ENVIs Governing Documents, applicable Law, and any applicable rules and regulations of the SEC and Nasdaq). Each of ENVI and the Company shall use its commercially reasonable efforts to (a) cause the Registration Statement / Proxy Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC (including, with respect to the Group Companies, the provision of financial statements of, and any other information with respect to, the Group Companies for all periods, and in the form, required to be included in the Registration Statement / Proxy Statement under Securities Laws (after giving effect to any waivers received) or in response to any comments from the SEC); (b) promptly notify the others of, reasonably cooperate with each other with respect to, mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either of ENVI or the Company, as applicable) and respond promptly to any comments of the SEC or its staff; (c) have the Registration Statement / Proxy Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC; and (d) keep the Registration Statement / Proxy Statement effective through the Closing in order to permit the consummation of the transactions contemplated by this Agreement. ENVI, on the one hand, and the Company, on the other hand, shall use commercially reasonable efforts to promptly furnish, or cause to be furnished, to the other all information concerning such Party and its Representatives that may be required or reasonably requested in connection with any action contemplated by this Section 5.8 or for inclusion in any other statement, filing, notice or application made by or on behalf of ENVI to the SEC or Nasdaq in connection with the transactions contemplated by this Agreement or the Ancillary Documents, including using commercially reasonable efforts to deliver customary tax representation letters to counsel to enable counsel to deliver any tax opinions requested or required by the SEC to be submitted in connection therewith in each case as described and to the extent provided for in Section 5.5(a)(iii). If any Party becomes aware of any information, event or circumstance relating to any Party, its business or any of its Affiliates, officers, directors or employees that should be disclosed in an amendment or supplement to the Registration Statement / Proxy Statement, then (i) such Party shall promptly inform, in the case of any ENVI Party, the Company, or, in the case of the Company, ENVI thereof; (ii) the Party to which the disclosure relates shall prepare and mutually agree upon with, if such Party is the Company, ENVI, or, if such party is ENVI, the Company (in either case, such agreement not to be unreasonably withheld, conditioned or delayed), an amendment or supplement to the Registration Statement / Proxy Statement; (iii) ENVI shall file such mutually agreed upon amendment or supplement with the SEC; and (iv) the Parties shall reasonably cooperate, if appropriate, in mailing such amendment or supplement to the shareholders of ENVI. ENVI shall as promptly as reasonably practicable advise the Company of the time of effectiveness of the
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Registration Statement / Proxy Statement, the issuance of any stop order relating thereto or the suspension of the qualification of ENVI Shares for offering or sale in any jurisdiction, and ENVI and the Company shall each use its commercially reasonable efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Each of the Parties shall use commercially reasonable efforts to ensure that none of the information related to him, her or it or any of its Representatives, that is supplied by it or on its behalf for inclusion or incorporation by reference in the Registration Statement / Proxy Statement will, at the time the Registration Statement / Proxy Statement is initially filed with the SEC, at each time at which it is amended, or at the time it becomes effective under the Securities Act contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
Section 5.9 ENVI Shareholder Approval. As promptly as reasonably practicable following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, (A) ENVI shall duly call, give notice of and duly convene and hold a meeting of its stockholders (the ENVI Shareholders Meeting), in accordance with the Governing Documents of ENVI and applicable Law, for the purposes of obtaining the ENVI Shareholder Approval, (B) mail the Proxy Statement / Prospectus and a valid form of proxy to the applicable shareholders of ENVI in accordance with applicable Law, (C) use commercially reasonable efforts to solicit proxies from the holders of ENVI Shares to vote in favor of each of the Transaction Proposals and (D) in connection with the mailing of the Proxy Statement / Prospectus and the ENVI Shareholders Meeting, provide the applicable ENVI shareholders with the opportunity to elect to effect an ENVI Shareholder Redemption in accordance with the Governing Documents of ENVI. ENVI shall, through unanimous approval of the members of the ENVI Board present at the meeting of the ENVI Board, recommend to its shareholders each of the following (the ENVI Board Recommendation): (A) the adoption and approval of this Agreement and the transactions contemplated hereby (including the Merger) (the Business Combination Proposal); (B) the approval of the issuance of the ENVI Shares in connection with the transactions contemplated by this Agreement as required by Nasdaq listing requirements (the Nasdaq Proposal); (C) the adoption and approval of the Amended and Restated Certificate of Incorporation of ENVI, in the form attached hereto as Exhibit F (the Required Governing Document Proposal), and related advisory proposals regarding the material amendments reflected therein; (D) the adoption and approval of the ENVI Incentive Equity Plan (the Incentive Equity Plan Proposal); (E) the adoption and approval of the ENVI Employee Stock Purchase Plan (the Employee Stock Purchase Plan Proposal); (F) the adoption and approval of each other proposal that either the SEC or Nasdaq (or the respective staff members thereof) indicates is necessary in its comments to the Registration Statement / Proxy Statement or in correspondence related thereto; (G) the adoption and approval of each other proposal reasonably agreed to by ENVI and the Company as necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents; and (H) the adoption and approval of a proposal for the adjournment of the ENVI Shareholders Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in (A) through (H), collectively, the Transaction Proposals), and ENVI shall include the ENVI Board Recommendation in the Registration Statement / Proxy Statement. Notwithstanding the foregoing or anything to the contrary herein, without the prior written consent of the Company, ENVI may only adjourn the ENVI Shareholders Meeting (and ENVI shall adjourn the ENVI Shareholder Meeting if an adjournment is reasonably requested by the Company
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in writing) (1) to solicit additional proxies because there are not sufficient votes to constitute the ENVI Shareholder Approval, (2) for the absence of a quorum, (3) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosures that ENVI (or the Company) has reasonably determined in good faith, based on the advice of outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the applicable shareholders of ENVI prior to the ENVI Shareholders Meeting or (4) if the holders of ENVI Class A Shares have elected to redeem a number of ENVI Class A Shares as of such time that would reasonably be expected to result in the condition set forth in Section 6.3(d) not being satisfied (assuming for purposes of this clause (4) that the full PIPE Financing Amount will be funded pursuant to the terms of the PIPE Subscription Agreements); provided, however, that, without the prior written consent of the Company, in no event shall ENVI adjourn the ENVI Shareholders Meeting (a) for more than ten (10) Business Days later than the most recently adjourned meeting, (b) in the case of any adjournment pursuant to clause (4), to a date that is later than twenty (20) Business Days after the originally scheduled date of the ENVI Shareholders Meeting or (c) to a date that is beyond the Termination Date. ENVI covenants that none of the ENVI Board, ENVI or any committee of the ENVI Board shall, except as otherwise determined by the ENVI Board in good faith, based on written advice from outside counsel, that, in response to an ENVI Intervening Event, a failure to change, withdraw, withhold, qualify, amend or modify its recommendation would violate the ENVI Boards fiduciary duties under applicable Law, (i) change, withdraw, withhold, qualify, amend or modify, or publicly propose to change, withdraw, withhold, qualify, amend or modify, in a manner adverse to the Company, the ENVI Board Recommendation or any other recommendation by the ENVI Board or ENVI of the proposals set forth in the Registration Statement / Proxy Statement, (ii) adopt, approve, recommend or declare advisable to the shareholders of ENVI, or publicly propose to adopt, approve, recommend or declare advisable, any ENVI Acquisition Proposal or (iii) fail to include the ENVI Board Recommendation in the Registration Statement / Proxy Statement (any action described in clause (i), (ii) or (iii) an ENVI Change in Recommendation).
Section 5.10 Merger Sub Shareholder Approval. As promptly as reasonably practicable (and in any event within one (1) Business Day) following the date of this Agreement, ENVI, as the sole stockholder of Merger Sub, will approve and adopt this Agreement, the Ancillary Documents to which Merger Sub is or will be a party and the transactions contemplated hereby and thereby (including the Merger).
Section 5.11 Conduct of Business of ENVI. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, ENVI shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary Document (including, for the avoidance of doubt, as contemplated pursuant to the PIPE Subscription Agreements), as required by applicable Law, as set forth on Section 5.11 of the ENVI Disclosure Schedules or as consented to in writing by the Company (such consent, other than in the case of Section 5.11(a), Section 5.11(b), Section 5.11(c), Section 5.11(d), Section 5.11(h), or Section 5.11(j), not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement or the Governing Documents of any ENVI Party;
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(b) create or form any Subsidiary;
(c) acquire (including 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, or make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person;
(d) (i) declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, its, or any of its Subsidiaries, Equity Securities, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding of its, or any of its Subsidiaries, Equity Securities, or (ii) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving any ENVI Party;
(e) split, combine or reclassify any of its, or any of its Subsidiaries, capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its, or any of its Subsidiaries, capital stock;
(f) incur, create or assume any Indebtedness, or guarantee any Liability of any Person;
(g) make any loans or advances to, or capital contributions in, any other Person, other than to, or in, ENVI or any of its Subsidiaries;
(h) issue any Equity Securities or grant any additional options, warrants or stock appreciation rights with respect to its Equity Securities;
(i) (i) amend, modify or renew any ENVI Affiliated Party Transaction, or make any material payment to any ENVI Affiliated Party (other than compensation payments to employees in the ordinary course of business, consistent with past practice, or the Contracts set forth on Section 4.12 of the ENVI Disclosure Schedules), or (ii) enter into any Contract that would constitute an ENVI Affiliated Party Transaction;
(j) engage in any activities or business, or incur any liabilities, other than any activities, businesses or ENVI Liabilities (i) in connection with or incidental or related to Merger Subs organization, incorporation or formation, as applicable, or an ENVI Partys continuing corporate (or similar) existence, (ii) that are either expressly permitted under this Section 5.11 (including, for the avoidance of doubt, any activities, businesses or ENVI Liabilities expressly contemplated by, incurred in connection with the performance of any covenants or agreements hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby), in accordance with Section 5.11 or (iii) those that are administrative or ministerial in nature and less than $100,000 individually, or in the aggregate;
(k) enter into, or amend or modify any material term of (in a manner adverse to any ENVI Party), terminate (excluding any expiration in accordance with its terms), or waive or release any material rights, claims or benefits under, any Contract of a type required to be listed
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on Section 4.9 of the ENVI Disclosure Schedules (or any Contract, that if existing on the date hereof, would have been required to be listed on Section 4.9 of the ENVI Disclosure Schedules);
(l) (i) adopt or amend any ENVI Benefit Plan, or enter into any employment Contract or collective bargaining agreement or (ii) hire any person as an employee of ENVI or Merger Sub;
(m) make, change or revoke any material election concerning Taxes other than in the ordinary course of business consistent with past practice, change any annual Tax accounting period, surrender any right to claim a material Tax refund, materially amend any filed material Tax Return, file any material Tax Return inconsistent with past practice in any material respect, enter into any Tax allocation, Tax sharing, Tax indemnity or other similar agreement (other than one that is included in a Contract entered into in the ordinary course of business that is not primarily related to Taxes), enter into any material Tax closing agreement, settle any material Tax claim or assessment, or Consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, other than any such extension or waiver that is obtained in the ordinary course of business;
(n) change any ENVI Partys methods of accounting in any material respect, other than changes that are made in accordance with PCAOB standards;
(o) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution;
(p) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders fee or other commission in connection with the transactions contemplated by this Agreement;
(q) make any ENVI Change of Control Payment that is not set forth on Section 4.22 of the ENVI Disclosure Schedules;
(r) amend, modify, alter, change or waive any of the terms, conditions and other provisions of any ENVI Warrant, including any reduction, adjustment or other alteration of the ENVI Warrant Price, whether pursuant to Section 3.1 of the ENVI Warrant Agreement or otherwise; or
(s) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.11.
Notwithstanding anything in this Section 5.11 or this Agreement to the contrary, but without limiting the terms of this Section 5.11, nothing set forth in this Agreement shall (i) give the Company, directly or indirectly, the right to control or direct the operations of any ENVI Party or (ii) prohibit, or otherwise restrict the ability of, any ENVI Party from using the funds held by ENVI outside the Trust Account to pay any ENVI Expenses or ENVI Liabilities or from otherwise distributing or paying over any funds held by ENVI outside the Trust Account that were loaned to ENVI by the ENVI Sponsor or HB Strategies as permitted under Section 5.11, as otherwise described in the Prospectus, or with the prior written consent of the Company to the ENVI Sponsor, HB Strategies or any of their respective Affiliates, in each case prior to the Closing.
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Section 5.12 Nasdaq Listing; ENVI Public Filings.
(a) Nasdaq Listing. ENVI shall use its commercially reasonable efforts to cause (a) ENVIs initial listing application with Nasdaq in connection with the transactions contemplated by this Agreement to be approved, (b) the ENVI Shares issuable in accordance with this Agreement, including the Merger, to be approved for listing on Nasdaq, subject to official notice of issuance thereof, and (c) to satisfy any and all of ENVIs applicable initial and continuing listing requirements of Nasdaq, in each case as promptly as reasonably practicable after the date of this Agreement, and in any event prior to the Effective Time. The Company shall use commercially reasonable efforts to, and shall use commercially reasonable efforts to cause its Representatives to, cooperate with ENVI and its Representatives in connection with the foregoing provisions of this Section 5.12(a), as reasonably requested by ENVI.
(b) ENVI Public Filings. From the date hereof through the Closing, ENVI shall (except, in the case of any reports to be filed or furnished in connection with the transactions contemplated by this Agreement or any Ancillary Document, to the extent that the Companys breach of its applicable covenants, agreements and obligations hereunder would result in the ENVIs inability to make such filings) use commercially reasonable efforts to keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws.
Section 5.13 Trust Account. Upon satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article 6 and provision of notice thereof to the Trustee, (a) at the Closing, ENVI shall (i) cause the documents, certificates and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and (ii) make all appropriate arrangements to cause the Trustee to (A) pay as and when due all amounts, if any, payable to the Public Shareholders of ENVI pursuant to the ENVI Shareholder Redemption, (B) pay the amounts due to the underwriters of ENVIs initial public offering for their deferred underwriting commissions as set forth in the Trust Agreement and (C) immediately thereafter, pay all remaining amounts then available in the Trust Account to ENVI in accordance with the Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.
Section 5.14 Company Shareholder Approval.
(a) As promptly as reasonably practicable (and in any event within five (5) Business Days) following the date on which the Registration Statement / Proxy Statement is declared effective under the Securities Act (the fifth (5th) Business Day following the date the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Company Shareholder Written Consent Deadline), the Company shall obtain and deliver to ENVI a true and correct copy of a written consent (in the form attached hereto as Exhibit H) adopting and approving this Agreement and the transactions contemplated hereby (including the Merger) from the Company Shareholders that hold at least a number of Company Shares equal to the Company Required Shareholder Approval (the Company Shareholder Written Consent).
(b) Promptly following the receipt of the Company Required Shareholder Approval, the Company shall prepare and deliver to each Company Shareholder who has not
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executed and delivered the Company Shareholder Written Consent an information statement, in form and substance required under the DGCL and otherwise reasonably satisfactory to ENVI, which information statement shall include (i) copies of this Agreement and the Proxy Statement / Prospectus, (ii) a description of any dissenters rights of the Company Shareholders available under Section 262 of the DGCL and any other disclosure with respect to dissenters rights required by applicable Law and (iii) in accordance with the requirements of Section 228(e) of the DGCL, notice to any Company Shareholder who has not executed and delivered the Company Shareholder Written Consent of the corporate action by those Company Shareholders who did execute the Company Shareholder Written Consent.
Section 5.15 Financing.
(a) ENVI shall use its commercially reasonable efforts to (i) obtain the PIPE Financing, enforce the obligations of the PIPE Investors under the PIPE Subscription Agreements, and consummate the purchases contemplated by the PIPE Subscription Agreements on the terms and subject to the conditions set forth in the PIPE Subscription Agreements, (ii) satisfy all conditions to the PIPE Financing set forth in the PIPE Subscription Agreements that are within its control, and (iii) satisfy and comply with its obligations under the PIPE Subscription Agreements. The Company shall use its commercially reasonable efforts to, and shall use its commercially reasonable efforts to cause its Representatives to, cooperate with ENVI and its Representatives in connection with the matters specified in this Section 5.15(a). If reasonably requested by the Company, ENVI shall, to the extent it has such rights under any PIPE Subscription Agreement, waive any breach of any representation, warranty, covenant or agreement of such PIPE Subscription Agreement by the applicable PIPE Investor to the extent necessary to cause the satisfaction of the conditions to closing of the PIPE Financing set forth in the PIPE Subscription Agreements and solely for the purpose of consummating the Closing, provided that (i) any such waiver may be subject to, and conditioned upon, the Closing occurring and the substantially concurrent funding of the PIPE Financing, (ii) subject to, and condition upon, the Closing occurring and the substantially concurrent funding of the PIPE Financing, the Company also waives any such breach to the extent the Company is a third-party beneficiary of the provision that was so breached, and (iii) any such waiver shall be subject to the rights of the placement agent, as applicable, under such PIPE Subscription Agreement with respect to such waiver.
(b) ENVI shall not amend, modify or waive any provisions of any PIPE Subscription Agreement without the prior written consent of the Company; provided, that any amendment, modification or waiver that is solely ministerial in nature or otherwise immaterial, and, in each case, that does not affect any economic or any other material term, shall not require the prior written consent of the Company, so long as ENVI has provided to the Company no less than two (2) Business Days prior written notice of such amendment, modification or waiver (including the form thereof), it being understood, but without limiting the foregoing, that it shall be deemed material if any amendment, modification or waiver (i) reduces the amount of the PIPE Financing available under the PIPE Subscription Agreements or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the PIPE Financing.
(c) ENVI shall (i) promptly notify the Company upon having knowledge of any material breach or default under, or termination of, any PIPE Subscription Agreement (including
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any refusal or repudiation by any PIPE Investor with respect to its obligation and/or ability to provide the full financing contemplated by the applicable PIPE Subscription Agreement), (ii) at least 24 hours prior to delivering any written notice (or any other material notice) to a PIPE Investor with respect to any PIPE Subscription Agreement, deliver such notice to the Company for its prior review and Consent (which Consent shall not be unreasonably withheld, conditioned or delayed), and (iii) promptly, and in any event, within two (2) Business Days following the Companys reasonable request, deliver the Closing Notice (as defined in the PIPE Subscription Agreement) to the PIPE Investors if conditions to the delivery of such notice under the PIPE Subscription Agreement have been satisfied or waived in accordance with the terms hereof and thereof and all of the conditions to the Closing set forth in Article 6 have been satisfied or waived (other than those conditions that, by their nature, are to be satisfied at the Closing, but that would, as of such date, reasonably be expected to be satisfied if the Closing were to occur).
Section 5.16 ENVI Indemnification; Directors and Officers Insurance.
(a) Each Party agrees that (i) all rights to indemnification or exculpation existing as of the date of this Agreement and in effect immediately prior to the Effective Time in favor of the directors and officers of each ENVI Party, as provided in the applicable ENVI Partys Governing Documents or director and officer indemnification agreements, in substantially the form set forth in the ENVI SEC Reports, in either case, solely with respect to any matters occurring on or prior to the Effective Time, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect from and after the Effective Time for a period of six (6) years and (ii) ENVI will perform and discharge, or cause to be performed and discharged, all obligations to provide such indemnity and exculpation during such six (6)-year period. To the maximum extent permitted by applicable Law, during such six (6)-year period, ENVI shall advance, or caused to be advanced, expenses in connection with such indemnification as provided in the applicable ENVI Partys Governing Documents or other applicable agreements as in effect immediately prior to the Effective Time. The indemnification and liability limitation or exculpation provisions of the ENVI Parties Governing Documents shall not, during such six (6)-year period, be amended, repealed or otherwise modified following the Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, as of immediately prior to the Effective Time, or at any time prior to such time, were directors or officers of any ENVI Party (the ENVI D&O Persons) entitled to be so indemnified, have their liability limited or be exculpated with respect to any matters occurring on or prior to the Effective Time and relating to the fact that such ENVI D&O Person was a director or officer of any ENVI Party on or prior to the Effective Time, unless such amendment, repeal or other modification is required by applicable Law.
(b) ENVI shall not have any obligation under this Section 5.16 to any ENVI D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such ENVI D&O Person in the manner contemplated hereby is prohibited by applicable Law.
(c) ENVI shall obtain, at or prior to the Closing, and ENVI shall maintain, or cause to be maintained, in effect for a period of six (6) years following the Effective Time, without lapses in coverage, a tail policy providing directors and officers liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies
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of ENVI in effect as of the date of this Agreement with respect to matters occurring on or prior to the Effective Time, which may be satisfied by an existing D&O insurance policy of ENVI, providing the aforementioned coverage set forth in this Section 5.16(c) (including via a prepaid or previously acquired tail that automatically takes effect at the Closing). Such tail coverage shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the Persons covered thereby than) the coverage provided under ENVIs directors and officers liability insurance policies as of the date of this Agreement; provided that none of the Company, ENVI or any their respective Affiliates shall be obligated to pay a premium for any tail policy, if any, in excess of three-hundred percent (300%) of the most recent annual premium paid by ENVI prior to the date of this Agreement and, in such event, ENVI or one of its Affiliates shall purchase the maximum coverage available for three-hundred percent (300%) of the most recent annual premium paid by ENVI prior to the date of this Agreement.
(d) If ENVI or any of its successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, ENVI shall use commercially reasonable efforts to cause the successors or assigns of ENVI to assume all of the obligations set forth in this Section 5.16.
(e) The Persons entitled to the indemnification, liability limitation, exculpation and/or insurance coverage set forth in this Section 5.16 are intended to be third-party beneficiaries of this Section 5.16. This Section 5.16 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of ENVI.
Section 5.17 Company Indemnification; Directors and Officers Insurance.
(a) Each Party agrees that (i) all rights to indemnification or exculpation existing as of the date of this Agreement and in effect immediately prior to the Effective Time in favor of the directors and officers of the Group Companies, as provided in the applicable Group Companys Governing Documents or director and officer indemnification agreements set forth on Section 5.17(a) of the Company Disclosure Schedules, in the form made available, in either case, solely with respect to any matters occurring on or prior to the Effective Time, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect from and after the Effective Time for a period of six (6) years and (ii) ENVI will cause the applicable Group Companies to perform and discharge all obligations to provide such indemnity and exculpation during such six (6)-year period. To the maximum extent permitted by applicable Law, during such six (6)-year period, ENVI shall cause the applicable Group Companies to advance expenses in connection with such indemnification as provided in the applicable Group Companys Governing Documents or other applicable agreements as in effect immediately prior to the Effective Time. The indemnification and liability limitation or exculpation provisions of the Group Companies Governing Documents shall not, during such six (6)-year period, be amended, repealed or otherwise modified following the Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, as of immediately prior to the Effective Time, or at any time prior to such time, were directors or officers of the Group Companies (the Company D&O Persons) entitled to be so indemnified, have their liability limited or be
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exculpated with respect to any matters occurring on or prior to the Effective Time and relating to the fact that such Company D&O Person was a director or officer of any Group Company on or prior to the Effective Time, unless such amendment, repeal or other modification is required by applicable Law.
(b) None of ENVI or the Group Companies shall have any obligation under this Section 5.17 to any Company D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such Company D&O Person in the manner contemplated hereby is prohibited by applicable Law.
(c) The Company shall obtain, at or prior to the Closing, and ENVI shall maintain, or cause to be maintained, in effect for a period of six (6) years following the Effective Time, without lapses in coverage, a tail policy providing directors and officers liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of the Group Companies in effect as of the date of this Agreement with respect to matters occurring on or prior to the Effective Time, which may be satisfied through by an existing D&O insurance policy of the Company described in Section 5.17(a), providing the aforementioned coverage set forth in this Section 5.17(c) (including via a prepaid or previously acquired tail that automatically takes effect at the Closing). Such tail coverage shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the Persons covered thereby) the coverage provided under the Group Companies directors and officers liability insurance policies as of the date of this Agreement; provided that none of the Company, ENVI or any their respective Affiliates shall be obligated to pay a premium for any tail policy, if any, in excess of three-hundred percent (300%) of the most recent annual premium paid by the Group Companies prior to the date of this Agreement and, in such event, the Company or one of its Affiliates shall purchase the maximum coverage available for three-hundred percent (300%) of the most recent annual premium paid by the Group Companies prior to the date of this Agreement.
(d) If ENVI or any of its successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, ENVI shall use commercially reasonable efforts to cause the successors or assigns of ENVI to assume all of the obligations set forth in this Section 5.17.
(e) The Persons entitled to the indemnification, liability limitation, exculpation or insurance coverage set forth in this Section 5.17 are intended to be third-party beneficiaries of this Section 5.17. This Section 5.17 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of ENVI.
Section 5.18 Post-Closing Directors and Officers.
(a) ENVI shall take all such action within its power as may be necessary or reasonably appropriate such that effective as of the Effective Time: (i) the ENVI Board shall consist of seven (7) directors; provided, that, if an individual is not identified to serve as a director
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pursuant to Section 5.18(e), then one director seat shall be vacant following the Effective Time until a director is appointed or elected to fill such vacant directorship in accordance with the Governing Documents of ENVI; (ii) the members of the ENVI Board are the individuals determined in accordance with Section 5.18(b), Section 5.18(c) and Section 5.18(d); (iii) the members of the compensation committee, audit committee and nominating committee of the ENVI Board are the individuals determined in accordance with Section 5.18(f); and (iv) the officers of ENVI (the Officers) are the individuals determined in accordance with Section 5.18(g).
(b) The individual designated by ENVI as identified on Section 5.18(b) of the ENVI Disclosure Schedules shall be a director on the ENVI Board immediately after the Effective Time (the ENVI Designee). Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the ENVI Sponsor may, by giving the Company and ENVI written notice, replace the ENVI Designee with any individual (so long as such individual is not a Disqualified Designee) and, upon the ENVI Sponsor so giving notice of the replacement of the ENVI Designee, Section 5.18(b) of the ENVI Disclosure Schedules shall automatically be deemed amended to include such replacement individual as the ENVI Designee in lieu of the individual so replaced.
(c) The four (4) individuals designated by the Company as identified on Section 5.18(c) of the Company Disclosure Schedules shall be directors on the ENVI Board immediately after the Effective Time (each, a Company Designee); provided, however, that at least two (2) of such Company Designees shall be independent directors with respect to ENVI under the listing rules of Nasdaq. Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, (i) the Company may, by giving ENVI and the ENVI Sponsor written notice, replace any Company Designee with any other individual that is a member of the Company Board or is a Company Board observer, in either case, as of the date of this Agreement and, upon the Company so giving notice of the replacement of such Company Designee, Section 5.18(c) of the Company Disclosure Schedules shall automatically be deemed amended to include such replacement individual as a Company Designee in lieu of, the individual so replaced. The Company may, with the prior written consent of ENVI and the ENVI Sponsor (such consent not to be unreasonably withheld, conditioned or delayed by either ENVI or the ENVI Sponsor), replace each and any Company Designee with any other individual and, if each of ENVI and the ENVI Sponsor each provides its written consent to the replacement of any such Company Designee pursuant to this clause (ii), then Section 5.18(c) of the Company Disclosure Schedules shall automatically be deemed amended to include such replacement individual as a Company Designee in lieu of the individual so replaced. Notwithstanding the foregoing or anything to the contrary herein, unless otherwise agreed in writing by ENVI and the ENVI Sponsor, in no event shall there be less than two (2) Company Designees that qualify as independent directors (as defined in Nasdaq rule 5605(a)(2)) (whether as a result of the replacement of any Company Designee as contemplated by this Section 5.18(c) or otherwise).
(d) The Companys Chief Executive Officer, who as of the date of this Agreement is Andrey Zarur, shall be a director on the ENVI Board immediately after the Effective Time.
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(e) The Company may identify one individual that qualifies as an independent director under the listing rules of Nasdaq and is reasonably acceptable to the ENVI Sponsor to serve as a director of the ENVI Board immediately after the Effective Time.
(f) Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Company shall designate each director that will serve on the compensation committee, the audit committee and the nominating committee of the ENVI Board immediately after the Effective Time, subject to applicable listing rules of Nasdaq and applicable Federal Securities Laws.
(g) The individuals identified on Section 5.18(g) of the Company Disclosure Schedules shall be Officers immediately after the Effective Time, with each such individual holding the title set forth opposite their name. In the event that any such individual identified on Section 5.18(g) of the Company Disclosure Schedules is unwilling or unable (whether due to death, disability, termination of service, removal from office, or otherwise) to serve as an Officer, then, the Company may, with the prior written consent of the ENVI Sponsor (such consent not to be unreasonably withheld, conditioned or delayed), replace such individual with another individual to serve as such Officer and, if the ENVI Sponsor provides its Consent to the replacement of such Officer, then Section 5.18(g) of the Company Disclosure Schedules shall automatically be deemed amended to include such replacement individual as an Officer in lieu of the individual so replaced with such title(s as the Company shall specify.
(h) The obligations of ENVI pursuant to Section 5.18(a) shall include ENVI causing the removal or resignation of the applicable officers and directors of ENVI prior to or at the Effective Time for purposes of effectuating the agreements therein, to the extent such removal or resignation has not otherwise occurred prior to the Effective Time.
Section 5.19 PCAOB Financials.
(a) The Company shall deliver to ENVI, (i) as promptly as reasonably practicable following the date of this Agreement, the audited consolidated balance sheets of the Company as of December 31, 2019 and December 31, 2020 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders deficit and cash flows of the Company for the years then ended (the financial statements described in this clause (i), the Closing Company Audited Financial Statements), and (ii) as promptly as reasonably practicable following the date of the applicable period, any other audited or unaudited consolidated balance sheets and the related unaudited consolidated statements of operations and comprehensive loss, and stockholders deficit and cash flows of the Group Companies as of and for a year-to-date period ended as of the end of any other different fiscal quarter (and as of and for the same period from the previous fiscal year) or fiscal year (and as of and for the prior fiscal quarter), as applicable, that as of such date is required to be included in the Registration Statement / Proxy Statement (the financial statements described in this clause (ii), the Other Closing Company Financial Statements, and collectively with the Closing Company Audited Financial Statements, the Closing Company Financial Statements). The Company shall cause the Closing Company Financial Statements (A) to be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any
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unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) in the case of any audited financial statements, to be audited in accordance with the standards of the PCAOB and to contain a report of the Companys auditor and (C) to comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable).
(b) The Company shall use its commercially reasonable efforts (i) to assist, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of the Group Companies, ENVI in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) that are required to be included in the Registration Statement / Proxy Statement and any other filings to be made by ENVI with the SEC in connection with the transactions contemplated by this Agreement or any Ancillary Document and (ii) to obtain the consents of its auditors with respect thereto as may be required by applicable Law or requested by the SEC.
Section 5.20 ENVI Incentive Equity Plan; ENVI Employee Stock Purchase Plan. Prior to the ENVI Shareholders Meeting, the ENVI Board shall approve and adopt (a) the equity incentive plan, in substantially the form attached as Exhibit I and with any changes or modifications thereto as the Company and ENVI may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or ENVI, as applicable) (the ENVI Incentive Equity Plan), in the manner prescribed under applicable Laws, effective as of immediately prior to the Closing, reserving initially 31,750,000 ENVI Shares for grant thereunder plus such additional ENVI Shares as may become available for issuance in accordance with the terms set forth in the ENVI Incentive Equity Plan, and (b) an employee stock purchase plan, in substantially the form attached as Exhibit J and with any changes or modifications thereto as the Company and ENVI may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or ENVI, as applicable) (the ENVI Employee Stock Purchase Plan), in the manner prescribed under applicable Laws, effective as of immediately prior to the Closing, reserving initially 2,000,000 ENVI Shares for grant thereunder plus such additional ENVI Shares as may become available for issuance in accordance with the terms set forth in the ENVI Employee Stock Purchase Plan.
Section 5.21 FIRPTA Certificates. At or prior to the Closing, the Company shall deliver, or cause to be delivered, to ENVI a certificate, duly executed by the Company, complying with Treasury Regulations Section 1.897-2(h)(2) and 1.1445-2(c)(3), together with evidence that the Company has provided notice to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), in each case, in a form and substance reasonably acceptable to ENVI.
Section 5.22 Section 16 Matters. Prior to the Effective Time, ENVI shall take all commercially reasonable steps as may be required (to the extent permitted under applicable Law) to cause any acquisition or disposition of the ENVI Class A Shares that occurs or is deemed to occur by reason of or pursuant to the transactions by each individual who is or will be subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to ENVI to be exempt
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under Rule 16b-3 promulgated under the Exchange Act, including adopting resolutions and taking other steps in accordance with the No-Action Letter, dated as of January 12, 1999, issued by the SEC regarding such matters.
Section 5.23 Post-Closing Cooperation; Further Assurances. Following the Closing, each Party shall, on the request of any other Party, execute such further documents, and perform such further acts, as may be reasonably necessary or appropriate to give full effect to the allocation of rights, benefits, obligations and liabilities contemplated by this Agreement.
Section 5.24 Affiliate Agreements. Except as set forth on Section 5.24 of the Company Disclosure Schedules, prior to the Closing, the Company shall terminate, or cause to be terminated, without liability to ENVI or any Group Company, all Affiliate Agreements, including the Contract(s) set forth on Section 3.7 of the Company Disclosure Schedule, and obtain evidence reasonably satisfactory to ENVI that such Affiliate Agreements have been terminated effective prior to the Closing.
Section 5.25 Pre-Closing Actions. Prior to the Closing, the Company shall take, and cause its Subsidiaries to take at their own cost and expense, the actions set forth and described in Section 5.25 of the Company Disclosure Schedules (the Pre-Closing Actions).
ARTICLE 6
CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
Section 6.1 Conditions to the Obligations of the Parties. The obligations of the Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, written waiver by all of the Parties, of the following conditions:
(a) each applicable waiting period under the HSR Act relating to the transactions contemplated by this Agreement shall have expired or been terminated;
(b) no Order or Law issued or enacted by any court of competent jurisdiction or other Governmental Entity of competent jurisdiction enjoining or prohibiting the consummation of the Merger shall be in effect;
(c) the Registration Statement / Proxy Statement shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC and shall remain in effect with respect to the Registration Statement / Proxy Statement, and no Proceeding seeking such a stop order shall have been threatened or initiated by the SEC and remain pending;
(d) the Company Required Shareholder Approval shall have been obtained;
(e) the ENVI Required Shareholder Approval shall have been obtained;
(f) ENVIs initial listing application with Nasdaq in connection with the transactions contemplated by this Agreement shall have been conditionally approved and,
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immediately following the Effective Time, ENVI shall, after giving effect to the ENVI Shareholder Redemption, satisfy any applicable initial and continuing listing requirements of Nasdaq, and ENVI shall not have received any notice of non-compliance therewith (and there is no basis for Nasdaq to provide such a notice of non-compliance) that has not been cured prior to, or would not be cured at or immediately following, the Effective Time, the ENVI Shares (including the ENVI Shares to be issued hereunder) shall have been approved for listing on Nasdaq; and
(g) after giving effect to the transactions contemplated hereby (including after giving effect to the PIPE Financing and after giving effect to the ENVI Shareholder Redemption), ENVI shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) immediately after the Effective Time.
Section 6.2 Other Conditions to the Obligations of the ENVI Parties. The obligations of the ENVI Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, written waiver by ENVI (on behalf of itself and the other ENVI Parties) of the following further conditions:
(a) (i) the Company Fundamental Representations (other than the representations and warranties set forth in Section 3.8(a)) shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect or any similar limitation set forth herein) in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in Section 3.8(a) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date); provided, however, that this clause (ii) shall be deemed to be satisfied if no Company Material Adverse Effect is continuing, and (iii) the representations and warranties of the of the Company set forth in Article 3 (other than the Company Fundamental Representations) shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect or any similar limitation set forth herein) in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a Company Material Adverse Effect;
(b) the Company shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the Company under this Agreement at or prior to the Closing;
(c) since the date of this Agreement, no Company Material Adverse Effect has occurred that is continuing;
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(d) the Pre-Closing Actions have been performed in accordance with Section 5.25 of the Company Disclosure Schedules; and
(e) at or prior to the Closing, the Company shall have delivered, or caused to be delivered, to ENVI the following documents:
(i) a certificate duly executed by an authorized officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in Section 6.2(a), Section 6.2(b) and Section 6.2(c) are satisfied, in a form and substance reasonably satisfactory to ENVI; and
(ii) the Investor Rights Agreement duly executed by the Company Shareholders set forth on Section 6.2(e)(ii) of the Company Disclosure Schedules.
Section 6.3 Other Conditions to the Obligations of the Company. The obligations of the Company to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, written waiver by the Company of the following further conditions:
(a) (i) the ENVI Fundamental Representations (other than the representations and warranties set forth in Section 4.8(a)) shall be true and correct (without giving effect to any limitation as to materiality or ENVI Material Adverse Effect or any similar limitation set forth herein) in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties ENVI Parties set forth in Section 4.8(a) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date); provided, however, that this clause (ii) shall be deemed to be satisfied if no ENVI Material Adverse Effect is continuing, and (iii) the representations and warranties of the ENVI Parties of the ENVI Parties (other than the ENVI Fundamental Representations) contained in Article 4 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or ENVI Material Adverse Effect or any similar limitation set forth herein) in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause an ENVI Material Adverse Effect;
(b) the ENVI Parties shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by them under this Agreement at or prior to the Closing;
(c) since the date of this Agreement, no ENVI Material Adverse Effect has occurred that is continuing;
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(d) the Aggregate Transaction Proceeds shall be equal to or greater than $105,000,000;
(e) as of immediately following the Effective Time, the ENVI Board shall consist of the number of directors, and be comprised of the individuals, determined pursuant to Section 5.18(a)(i)-(ii);
(f) (i) the Amended and Restated Certificate of Incorporation of ENVI, in the form attached hereto as Exhibit F (or in such other form to which the Company shall have consented in writing (such consent not to be unreasonably withheld, conditioned or delayed)), shall have been filed with the Secretary of State of the State of Delaware and shall have become effective or shall provide that they will become effective no later than the Effective Time and (ii) the Amended and Restated Bylaws of ENVI, in the form attached hereto as Exhibit G (or in such other form to which the Company shall have consented in writing (such consent not to be unreasonably withheld, conditioned or delayed)), shall have become effective or shall provide that they will become effective no later than the Effective Time;
(g) the ENVI Sponsor and the Other Class B Shareholders shall have complied in all material respects with their covenants and agreements required to be performed or complied with by them under the Sponsor Letter Agreement at or prior to the Closing;
(h) at or prior to the Closing, ENVI shall have delivered, or caused to be delivered, the following documents:
(i) a certificate duly executed by an authorized officer of ENVI, dated as of the Closing Date, to the effect that the conditions specified in Section 6.3(a), Section 6.3(b), and Section 6.3(c), are satisfied, in a form and substance reasonably satisfactory to the Company; and
(ii) the Investor Rights Agreement duly executed by ENVI, the ENVI Sponsor and the Other Class B Shareholders.
Section 6.4 Frustration of Closing Conditions. The Company may not rely on the failure of any condition set forth in this Article 6 to be satisfied if such failure was proximately caused by the Companys breach of its obligations under this Agreement, including a breach of its obligations to use commercially reasonable efforts to cause the Closing to occur as required by Section 5.2. None of the ENVI Parties rely on the failure of any condition set forth in this Article 6 to be satisfied if such failure was proximately caused by an ENVI Partys breach of its obligations under this Agreement, including a breach of its obligations to use commercially reasonable efforts to cause the Closing to occur as required by Section 5.2.
ARTICLE 7
TERMINATION
Section 7.1 Termination. This Agreement may be terminated, and the transactions contemplated by this Agreement may be abandoned at any time prior to the Closing:
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(a) by mutual written consent of ENVI and the Company;
(b) by ENVI, if any of the representations or warranties set forth in Article 3 shall not be true and correct or if the Company has failed to perform any covenant or agreement on the part of the Company set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 6.2(a) or Section 6.2(b) could not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof is delivered to the Company by ENVI, and (ii) the Termination Date; provided, however, that none of the ENVI Parties is then in breach of this Agreement so as to prevent the condition to Closing set forth in either Section 6.3(a) or Section 6.3(b) from being satisfied;
(c) by the Company, if any of the representations or warranties set forth in Article 4 shall not be true and correct or if any ENVI Party has failed to perform any covenant or agreement on the part of such applicable ENVI Party set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 6.3(a) or Section 6.3(b) could not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof is delivered to ENVI by the Company and (ii) the Termination Date; provided, however, the Company is not then in breach of this Agreement so as to prevent the condition to Closing set forth in Section 6.2(a) or Section 6.2(b) from being satisfied;
(d) by either ENVI or the Company, if the transactions contemplated by this Agreement shall not have been consummated on or prior to 11:59 P.M. Eastern Time on February 10, 2022 the Termination Date); provided, that (i) the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to ENVI if any ENVI Partys breach of any of its covenants or obligations under this Agreement or any Ancillary Document to which it is a party shall have proximately caused (either individually or when taken together) the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date, and (ii) the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to the Company if the Companys breach of any its covenants or obligations under this Agreement or any Ancillary Document to which it is party shall have proximately caused (either individually or when taken together) the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date; provided, further, that the Termination Date shall be automatically extended by an additional six months if the U.S. Department of Justice or the U.S. Federal Trade Commission issues a Second Request for additional information or documentary material pursuant to the HSR Act;
(e) by either ENVI or the Company, if any Governmental Entity of competent jurisdiction shall have issued an Order or enacted or promulgated a Law permanently enjoining or prohibiting the consummation of the Merger (and, in the case of an Order, such Order shall have become final and nonappealable);
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(f) by either ENVI or the Company, if the ENVI Shareholders Meeting has been held (including following any adjournment thereof), has concluded, ENVIs shareholders have duly voted and the ENVI Required Shareholder Approval was not obtained; or
(g) by ENVI, if the Company has not delivered, or cause to be delivered, to ENVI written consents of the Company Shareholders sufficient to constitute the Company Shareholder Written Consent on or prior to the date that constitutes the Company Shareholder Written Consent Deadline; provided, however, that the termination rights under this Section 7.1(g) shall expire and ENVI shall not be entitled to terminate this Agreement pursuant to this Section 7.1(g) if the Company Required Shareholder Approval has been obtained and delivered to ENVI prior to the time that this Agreement is terminated pursuant to this Section 7.1(g).
Section 7.2 Effect of Termination. Except for a termination pursuant to Section 7.1(a), any termination of this Agreement pursuant to Section 7.1 will be effective (subject to the cure periods (if any) provided above) immediately upon the delivery of a valid written notice of the terminating Party to each of the other Parties hereto. In the event of the termination of this Agreement pursuant to Section 7.1, this entire Agreement shall forthwith become void (and there shall be no Liability or obligation on the part of the Parties and their respective Representatives) with the exception of Section 5.3(a), this Section 7.2, Article 8 and Article 1 (to the extent, with respect to Article 1, related to the foregoing), each of which shall survive such termination and remain valid and binding obligations of the Parties and the Confidentiality Agreement shall survive any such termination and remain the valid and binding obligations of the parties thereto in accordance with its terms. Notwithstanding the foregoing or anything to the contrary herein, the termination of this Agreement pursuant to Section 7.1 shall not affect (i) any Liability on the part of any Party for any Willful Breach of any covenant or agreement set forth in this Agreement prior to such termination or any Fraud or (ii) any Persons Liability under any PIPE Subscription Agreement, any Confidentiality Agreement, any Transaction Support Agreement, or the Sponsor Letter Agreement to which he, she or it is a party to the extent arising from a claim against such Person by another Person party to such agreement on the terms and subject to the conditions thereunder.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Non-Survival. The representations and warranties, and each of the agreements and covenants (to the extent such agreement or covenant contemplates or requires performance at or prior to the Effective Time) of the Parties set forth in this Agreement shall terminate at the Effective Time. Each covenant and agreement contained herein that, by its terms, expressly contemplates performance after the Effective Time shall so survive the Effective Time in accordance with its terms.
Section 8.2 Entire Agreement; Assignment. This Agreement (together with the Ancillary Documents and the Confidentiality Agreement) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other prior and contemporaneous agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof, including the Non-Binding Letter of Intent dated April 21,
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2021. This Agreement may not be assigned by any Party (whether by operation of law or otherwise) without the prior written consent of ENVI and the Company; provided, however, that to the extent any such assignment following the Closing relates to the ENVI Sponsor Specified Provisions, the assigning Party shall continue to be bound by its obligations under such provisions. Any attempted assignment of this Agreement not in accordance with the terms of this Section 8.2 shall be void.
Section 8.3 Amendment. This Agreement may be amended or modified only by a written agreement executed and delivered by ENVI and the Company; provided, however, that following the Closing any amendment or modification to the ENVI Sponsor Specified Provisions that is adverse to the ENVI Sponsor shall also require the written consent of the ENVI Sponsor. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 8.3 shall be void ab initio. Subject to the foregoing, this Agreement may be amended or modified before or after the adoption and approval of this Agreement by the Company Shareholders or the shareholders of Merger Sub, provided that after any such adoption and approval, no amendment or modification shall be made to this Agreement that by Law requires further approval or authorization by the Company Shareholders or the shareholders of Merger Sub without such further approval or authorization.
Section 8.4 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) by delivery in person, by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the e-mail was sent to the intended recipient thereof without an error or similar message that such e-mail was not received by such intended recipient)), by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) or by reputable overnight courier (fees prepaid) (upon the next Business Day) to the other Parties as follows:
(a) | If to any ENVI Party, to: |
c/o Environmental Impact Acquisition Corp.
535 Madison Avenue
New York, NY 10022
Attention: Legal Department
E-mail: lteipner@cgf.com
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, CA 90067
Attention: Steven B. Stokdyk; Brian Duff
E-mail: steven.stokdyk@lw.com; brian.duff@lw.com
(b) | If to the Company, to: |
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GreenLight Biosciences, Inc.
200 Boston Avenue, Suite 3100
Medford, MA 02155
Attention: General Counsel
Email: notices@greenlightbio.com
with a copy (which shall not constitute notice) to:
Foley Hoag LLP
155 Seaport Blvd.
Boston, MA 02210
Attention: David Broadwin; John Hancock
E-mail: dab@foleyhoag.com; jhancock@foleyhoag.com
and a copy (which shall not constitute notice) to:
Foley Hoag LLP
1301 Avenue of the Americas, 25th Floor
New York, NY 10019
Attention: Adrienne Ellman
Email: aellman@foleyhoag.com
or to such other address as the Party to whom notice is given may have furnished following the date of this Agreement and prior to such notice to the others in writing in the manner set forth above.
Section 8.5 Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.
Section 8.6 Fees and Expenses. Except as otherwise set forth in this Agreement, all fees and expenses incurred in connection with this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses. For the avoidance of doubt, if this Agreement is terminated in accordance with its terms, the Company shall pay, or cause to be paid, all Unpaid Company Expenses and ENVI shall pay, or cause to be paid, all Unpaid ENVI Expenses.
Section 8.7 Construction; Interpretation. The term this Agreement means this Business Combination Agreement together with the Schedules and Exhibits hereto, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not
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strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, herein, hereto, hereof and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) references to the pronoun they or them when referring to a natural person shall also include the feminine, masculine and other genders; (c) the words include, includes or including shall be deemed to be followed by the words without limitation; (d) references to $ or dollar or US$ shall be references to United States dollars; (e) the word or is disjunctive but not necessarily exclusive; (f) the words writing, written and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (g) the word day means calendar day unless Business Day is expressly specified; (h) the word extent in the phrase to the extent means the degree to which a subject or other thing extends, and such phrase shall not mean simply if; (i) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement; (j) the words provided, made available or words of similar import (regardless of whether capitalized or not) shall mean, when used with reference to documents or other materials required to be provided or made available to ENVI, any documents or other materials posted to the electronic data room located at the Intralinks Virtual Data Room under the project name Project Honey Bee as of 5:00 p.m., Eastern Time, at least one (1) day prior to the date of this Agreement; (k) all references to any Law will be to such Law as amended, supplemented or otherwise modified or re-enacted from time to time; and (l) all references to any Contract are to that Contract as amended or modified from time to time in accordance with the terms thereof (subject to any restrictions on amendments or modifications set forth in this Agreement). If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter.
Section 8.8 Exhibits and Schedules. All Exhibits and Schedules, or documents expressly incorporated into this Agreement, are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full in this Agreement. The Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered Sections and subsections set forth in this Agreement. Any item disclosed in the Company Disclosure Schedules or in the ENVI Disclosure Schedules corresponding to any Section or subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the ENVI Disclosure Schedules), respectively, shall be deemed to have been disclosed with respect to every other section and subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the ENVI Disclosure Schedules), respectively, where the relevance of such disclosure to such other Section or subsection is reasonably apparent on the face of the disclosure. The information and disclosures set forth in the Schedules that correspond to the sections or subsections of Article 3 or Article 4 may not be limited to matters required to be disclosed in the Schedules, and any such additional information or disclosure is for informational purposes only and does not necessarily include other matters of a similar nature and shall not be deemed to be an admission that such information is material or required to be disclosed.
Section 8.9 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns and, except as provided in Section 5.16, Section 5.17, the last sentence of this Section 8.9 and Section 8.13, nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights,
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benefits or remedies of any nature whatsoever under or by reason of this Agreement. The ENVI Sponsor shall be an express third-party beneficiary of Section 8.2, Section 8.3, this Section 8.9, Section 8.13 and Section 8.14 (collectively, the ENVI Sponsor Specified Provisions).
Section 8.10 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall 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 or its stockholders. Upon any such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, 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 an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Section 8.11 Counterparts; Electronic Signatures. This Agreement and each Ancillary Document (including any of the closing deliverables contemplated hereby) may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement or any Ancillary Document (including any of the closing deliverables contemplated hereby) by e-mail, DocuSign (or similar platform) or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement or any such Ancillary Document.
Section 8.12 Knowledge of Company; Knowledge of ENVI. For all purposes of this Agreement, the phrase to the Companys knowledge and known by the Company and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 4.8(a) of the Company Disclosure Schedules (the Company Knowledge Parties), assuming the Company Knowledge Parties have made reasonable inquiry of their direct reports. For all purposes of this Agreement, the phrase to ENVIs knowledge and to the knowledge of ENVI and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12(b) of the ENVI Disclosure Schedules (the ENVI Knowledge Parties), assuming the ENVI Knowledge Parties have made reasonable inquiry of their direct reports. For the avoidance of doubt, none of the individuals set forth on Section 8.12(a) of the Company Disclosure Schedules or Section 8.12(b) of the ENVI Disclosure Schedules shall have any personal Liability or obligations regarding such knowledge.
Section 8.13 No Recourse. Without limiting any rights of any party to an Ancillary Document against any other party to such Ancillary Document to the extent arising under the terms and conditions thereof or any Liabilities of any party to an Ancillary Document to any other party to such Ancillary Document to the extent arising under the terms and conditions thereof, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought by and against, the Parties, and then only with respect to the specific covenants, agreements, obligations, representations and warranties set forth herein with respect to such Party. Without limiting any rights of any party to an Ancillary Document against any other party to such Ancillary Document to the extent arising under the terms and conditions thereof or any Liabilities of any
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party to an Ancillary Document to any other party to such Ancillary Document to the extent arising under the terms and conditions thereof, except for the Parties (and then only to the extent of the specific covenants, agreements, obligations, representations and warranties undertaken by such named party in this Agreement), (a) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or Representative or Affiliate of any named party to this Agreement and (b) no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or Representative or Affiliate of any of the foregoing shall have any Liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other Liabilities of any one or more of the Company, ENVI or Merger Sub under this Agreement of or for any claim based on, arising out of, or related to this Agreement or the transactions contemplated hereby.
Section 8.14 Extension; Waiver. The Company may (a) extend the time for the performance of any of the obligations or other acts of the ENVI Parties set forth herein, (b) waive any inaccuracies in the representations and warranties of the ENVI Parties set forth herein or (c) waive compliance by the ENVI Parties with any of the agreements or conditions set forth herein. ENVI may (i) extend the time for the performance of any of the obligations or other acts of the Company set forth herein, (ii) waive any inaccuracies in the representations and warranties of the Company set forth herein or (iii) waive compliance by the Company with any of the agreements or conditions set forth herein. Notwithstanding the foregoing or anything to the contrary in this Agreement, following the Closing any extension or waiver of the ENVI Sponsor Specified Provisions that is adverse to the ENVI Sponsor shall also require the written consent of the ENVI Sponsor. Any agreement on the part of any such Party to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Party. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any Party to assert any of its rights hereunder shall not constitute a waiver of such rights.
Section 8.15 Waiver of Jury Trial. EACH OF THE PARTIES HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR UNDER ANY ANCILLARY DOCUMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY ANCILLARY DOCUMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH OF THE PARTIES HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
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OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.15.
Section 8.16 Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, the Superior Court of the State of Delaware, or the United States District Court for the District of Delaware), for the purposes of any Proceeding, claim, demand, action or cause of action (a) arising under this Agreement or under any Ancillary Document or (b) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any Ancillary Document or any of the transactions contemplated hereby or any of the transactions contemplated thereby,. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding claim, demand, action or cause of action against such Party (i) arising under this Agreement or under any Ancillary Document or (ii) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any Ancillary Document or any of the transactions contemplated hereby or any of the transactions contemplated thereby, (A) any claim that such Party is not personally subject to the jurisdiction of the courts as described in this Section 8.16 for any reason, (B) any claim that such Party or such Partys property is exempt or immune from the 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 (x) the Proceeding, claim, demand, action or cause of action in any such court is brought against such Party in an inconvenient forum, (y) the venue of such Proceeding, claim, demand, action or cause of action against such Party is improper or (z) this Agreement, or the subject matter hereof, may not be enforced against such Party in or by such courts. Each Party agrees that service of any process, summons, notice or document by overnight courier to such partys address set forth in Section 8.4 shall be effective service of process for any such Proceeding, claim, demand, action or cause of action.
Section 8.17 Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their respective obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties
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agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
Section 8.18 Trust Account Waiver. Reference is made to the final prospectus of ENVI, dated as of January 13, 2021 and filed with the SEC (File Nos. 333-251593 and 333-252093) on January 15, 2021 (the Prospectus). The Company acknowledges and agrees and understands that ENVI has established a trust account (the Trust Account) containing the proceeds of its IPO (including the proceeds of the exercise by the underwriters of their over-allotment option) and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of ENVIs public shareholders (the Public Shareholders), and that ENVI may disburse monies from the Trust Account only in the express circumstances described in the Prospectus. For and in consideration of ENVI entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company hereby agrees on behalf of itself and its Representatives that, notwithstanding anything to the contrary in this Agreement, neither the Company nor any of its Representatives (acting through the Company) does now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any proposed or actual business relationship between ENVI or its Representatives, on the one hand, and the Company or its Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the Trust Account Released Claims). The Company, on behalf of itself and its Representatives (acting through the Company), hereby irrevocably waives any Trust Account Released Claims that the Company or any of its Representatives (acting through the Company) may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations or Contracts with ENVI or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of any agreement with ENVI or its Affiliates), other than for the release of proceeds from the Trust Account upon the consummation of the Merger.
* * * * *
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IN WITNESS WHEREOF, each of the Parties has caused this Business Combination Agreement to be duly executed on its behalf as of the day and year first above written.
ENVIRONMENTAL IMPACT ACQUISITION CORP. | ||
By: |
/s/ Daniel Coyne | |
Name: |
Daniel Coyne | |
Title: |
Chief Executive Officer | |
HONEY BEE MERGER SUB, INC. | ||
By: |
/s/ Daniel Coyne | |
Name: |
Daniel Coyne | |
Title: |
Chief Executive Officer | |
GREENLIGHT BIOSCIENCES, INC. | ||
By: |
/s/ Andrey Zarur | |
Name: |
Andrey Zarur, Ph.D. | |
Title: |
Chief Executive Officer |
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Exhibit 10.1
SPONSOR LETTER AGREEMENT
This SPONSOR LETTER AGREEMENT (this Agreement), dated as of August 9, 2021, is made by and among (i) CG Investments Inc. VI, a Canadian corporation (Sponsor), (ii) HB Strategies LLC, a Delaware limited liability company (HB Strategies), (iii) the other holders of Class B Common Stock, par value $0.0001 per share, of ENVI (ENVI Class B Shares) (such holders, the Other Class B Shareholders and together with Sponsor and HB Strategies, the Shareholders, and each a Shareholder), (iv) Environmental Impact Acquisition Corp., a Delaware corporation (ENVI), and (v) GreenLight Biosciences, Inc., a Delaware corporation (the Company). Each of the Shareholders, ENVI and the Company shall be referred to herein from time to time collectively as the Parties and each as a Party. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
WHEREAS, as of the date hereof the Shareholders are collectively the holders of record and beneficial owners (within the meaning of Rule 13d-3 under the Exchange Act) of an aggregate of 5,175,000 ENVI Class B Shares, warrants (the Private Placement Warrants) to purchase 2,000,000 shares of Class A Common Stock, par value $0.0001 per share, of ENVI (ENVI Class A Shares and together with ENVI Class B Shares, the ENVI Common Stock) issued to HB Strategies pursuant to a private placement of securities, and warrants (the Insider Warrants, and together with the Private Placement Warrants and any other warrants to purchase ENVI Class A Shares that ENVI may issue to HB Strategies, Sponsor or any of their respective Affiliates after the date hereof, the ENVI Warrants) to purchase 750,000 ENVI Class A Shares issued to the Sponsor and certain directors and officers of ENVI (the ENVI Class B Shares, Private Placement Warrants and Insider Warrants owned by the Shareholders, together with any additional ENVI Common Stock or securities convertible into or exercisable or exchangeable for ENVI Common Stock issued as a result of a stock dividend, stock split, recapitalization, combination, reclassification or exchange of such shares, or upon exercise or conversion of such securities, the Subject ENVI Securities);
WHEREAS, concurrently with the execution and delivery of this Agreement, ENVI, the Company and Honey Bee Merger Sub, Inc., a Delaware corporation (ENVI Merger Sub and together with ENVI, the ENVI Parties and each an ENVI Party), are entering into that certain Business Combination Agreement, dated as of the date hereof (as it may be amended, restated or otherwise modified from time to time in accordance with its terms, the Business Combination Agreement); and
WHEREAS, the Business Combination Agreement contemplates that, concurrently with the entry into the Business Combination Agreement by the parties thereto, the Parties will enter into this Agreement, pursuant to which, among other things, (a) the Shareholders agree that they will vote in favor of approval of the Business Combination Agreement and the transactions contemplated thereby (including the Merger), (b) the Shareholders agree to waive any adjustment to the conversion ratio set forth in the Governing Documents of ENVI, including under Article IV of the Amended and Restated Certificate of Incorporation of ENVI, or any other anti-dilution or similar protection with respect to all of the ENVI Class B Shares related to the transactions contemplated by the Business Combination Agreement, (c) subject to certain exceptions or as otherwise set forth herein, the Shareholders agree not, directly or indirectly, to
sell, assign, transfer (including by operation of law), create any Lien or pledge, dispose of or otherwise encumber any securities or other equity interests of ENVI or otherwise agree to do any of the foregoing, and (d) the Shareholders agree not to solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, an ENVI Acquisition Proposal.
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
1. Agreement to Vote.
(a) Each Shareholder (in his, her or its capacity as a shareholder of ENVI and on behalf of himself, herself and itself and not the other Shareholders) hereby irrevocably agrees, at any meeting of the shareholders of ENVI duly called and convened in accordance with the Governing Documents of ENVI, whether or not adjourned and however called, including at the ENVI Shareholders Meeting or otherwise, and in any action by written consent of the shareholders of ENVI, (i) to vote, or cause to be voted, or execute and return, or cause to be executed and returned, an action by written consent with respect to, as applicable, all of such Subject ENVI Securities (if any) held of record or beneficially by such Shareholder as of the date of this Agreement, or to which such Shareholder acquires record or beneficial ownership after the date hereof, in favor of each of the Transaction Proposals, in each case, to the extent Subject ENVI Securities are entitled to vote thereon or consent thereto and (ii) when such meeting is held, appear at such meeting or otherwise cause the Subject ENVI Securities to be counted as present thereat for the purpose of establishing a quorum, and (iii) to vote against, or cause to be voted against, or withhold written consent, or cause written consent to be withheld, with respect to, as applicable, (A) any ENVI Acquisition Proposal or (B) any other matter, action or proposal that would reasonably be expected to result in (x) a breach of any of such Shareholders covenants, agreements or obligations under this Agreement, (y) a breach of any of the ENVI Parties covenants, agreements or obligations under the Business Combination Agreement or (z) any of the conditions to the Closing set forth in Sections 6.1 or 6.3 of the Business Combination Agreement not being satisfied.
(b) Without limiting any other rights or remedies of the Company, each Shareholder hereby irrevocably appoints each of the chief executive officer, the chief financial officer and the general counsel of the Company, and each of them acting singly, or any other officer of the Company designated by the Company, as such Shareholders agent, attorney-in-fact and proxy (with full power of substitution and resubstitution), for and in the name, place and stead of such Shareholder, (i) to attend on behalf of such Shareholder any meeting of the shareholders of ENVI, including any ENVI Shareholders Meeting, with respect to the matters described in Section 1(a), (ii) to include the Subject ENVI Securities in any computation for purposes of establishing a quorum at any such meeting of the shareholders of ENVI, and (iii) to vote (or cause to be voted), or deliver a written consent (or withhold consent) with respect to, as applicable, the Subject ENVI Securities on the matters specified in, and in accordance and consistent with Section 1(a) in connection with any such meeting or any action by written
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consent by the holders of ENVI Shares, in each case, in the event that such Shareholder fails to perform, to be counted as present at any meeting or otherwise comply with the covenants, agreements or obligations set forth in Section 1(a).
(c) The proxy granted by each Shareholder pursuant to Section 1(b) is coupled with an interest sufficient in law to support an irrevocable proxy and is granted in consideration for the Company entering into the Business Combination Agreement and agreeing to consummate the transactions contemplated thereby. The proxy granted by each Shareholder pursuant to Section 1(b) is also a durable proxy and shall survive the bankruptcy, dissolution, death, incapacity or other inability to act by such Shareholder and shall revoke any and all prior proxies granted by such Shareholder with respect to the Subject ENVI Securities. The vote or consent of the proxyholder in accordance with Section 1(b) and with respect to the matters described in Section 1(a) shall control in the event of any conflict between such vote or consent by the proxyholder of the Subject ENVI Securities and a vote or consent by such Shareholder of such Subject ENVI Securities (or any other Person with the power to vote or provide consent with respect to such Subject ENVI Securities) with respect to the matters described in Section 1(a). The proxyholder may not exercise the proxy granted pursuant to Section 1(b) on any matter except for those matters described in Section 1(a).
2. Waiver of Anti-dilution Protection. Each Shareholder hereby agrees that, at or before the Closing, all ENVI Class B Shares held by such Shareholder shall be converted into an identical number of ENVI Class A Shares, without any adjustment whatsoever, and each Shareholder shall take such action as shall be necessary to effectuate such conversion at such time. Each Shareholder hereby (a) waives, subject to, and conditioned upon, the occurrence of the Closing (for himself, herself or itself and for his, her or its, successors, heirs and assigns), and (b) agrees not to assert or perfect, any rights to adjustment or other anti-dilution protections with respect to the rate that the ENVI Class B Shares held by him, her or it convert into ENVI Class A Shares, including those set out in Article IV of the Amended and Restated Certificate of Incorporation of ENVI, in connection with the transactions contemplated by the Business Combination Agreement or otherwise. ENVI hereby acknowledges and agrees to such waiver. If for any reason a Shareholder shall receive, in respect of the conversion of the ENVI Class B Shares held by him, her or it, more than an identical number of ENVI Class A Shares, such Shareholder agrees to, and hereby does, surrender all such excess ENVI Class A Shares to ENVI without additional consideration.
3. Transfer of Shares.
(a) Except with the prior written consent of the Company (such consent to be given or withheld in its sole discretion), from and after the date hereof, each Shareholder hereby agrees that he, she or it shall not (i) Transfer any of his, her or its Subject ENVI Securities, (ii) enter into (A) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more other developments or events (including the satisfaction or waiver of any conditions precedent)) require such Shareholder to Transfer his, her or its Subject ENVI Securities or (B) any voting trust, proxy or other Contract with respect to the voting or Transfer of any of the Subject ENVI Securities in a manner inconsistent with the covenants and obligations of this Agreement, or (iii) enter into any Contract to take, or cause to be taken, any of the actions set forth in clauses (i) or (ii); provided, however, that the foregoing shall not apply to
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any Transfer (1) to any other Shareholder party to this Agreement; (2) in the case of an individual, by will or intestate succession upon the death of the individual (it being understood and agreed that the appointment of one or more executors, administrators or personal representatives of the estate of an individual shall not be deemed a Transfer hereunder to the extent that such executors, administrators and/or personal representatives comply with the terms of this Agreement on behalf of such estate); (3) in the case of an individual, pursuant to a qualified domestic relations order, court order or in connection with a divorce settlement; (4) in the case of an individual, to a trust, family limited partnership or other entity Controlled by such individual and formed primarily for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of such individual or any other person with whom the individual has a relationship by blood, marriage or adoption not more remote than first cousin; (5) to an Affiliate Controlled by such Shareholder; or (6) to a nominee or custodian of a permitted transferee under clauses (1) through (5) above; provided, that the transferring Shareholder shall, and shall cause any transferee of his, her or its Subject ENVI Securities of the type set forth in clauses (1) through (6), to enter into a written agreement in form and substance reasonably satisfactory to the Company, agreeing to be bound by this Agreement (which will include, for the avoidance of doubt, all of the covenants, agreements and obligations of the transferring Shareholder hereunder and the making of all applicable representations and warranties of the transferring Shareholder set forth in Section 5 with respect to such transferee and his, her or its Subject ENVI Securities received upon such Transfer, as applicable) prior and as a condition to the occurrence of such Transfer. For purposes of this Agreement, Transfer means any, direct or indirect, sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest or encumbrance in or disposition of an interest (whether with or without consideration, whether voluntarily or involuntarily or by operation of law or otherwise). For the avoidance of doubt and not withstanding any other provision of this Section 3, nothing in this Agreement or otherwise shall prevent HB Strategies or its affiliates from Transferring or otherwise transacting in any securities of ENVI other than the Subject ENVI Securities, including without limitation those acquired in the open market, privately negotiated transactions, the ENVI initial public offering or otherwise.
(b) In the event of a stock split, stock dividend or distribution, or any change in the Equity Securities of ENVI by reason of a split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the term Subject ENVI Securities shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
(c) In furtherance of the foregoing, ENVI hereby agrees to (i) place a revocable stop order on all Subject ENVI Securities subject to Section 3(a), including those which may be covered by a registration statement, and (ii) notify ENVIs transfer agent in writing of such stop order and the restrictions on such Subject ENVI Securities under Section 3(a) and direct ENVIs transfer agent not to process any attempts by any such Shareholder to Transfer any Subject ENVI Securities except in compliance with Section 3(a); for the avoidance of doubt, the obligations of ENVI under this Section 3(b) shall be deemed to be satisfied by the existence of any similar stop order or restrictions currently existing on the Subject ENVI Securities.
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4. Other Covenants.
(a) Confidentiality. Each Shareholder hereby acknowledges and agrees that prior to the Companys public announcement of the Business Combination Agreement on a Report on Form 8-K, the information being provided in connection with this Agreement, the Business Combination Agreement and the consummation of the transactions contemplated hereby and thereby is subject to the terms of that certain Mutual Confidentiality Agreement, dated February 12, 2021, by and between the Company and ENVI, a form of which is attached hereto as Exhibit A (the Confidentiality Agreement) and the terms of which are incorporated herein by reference, that such information may constitute confidential information of each of the Company and ENVI, that such Shareholder shall be bound by the Confidentiality Agreement to the same extent as if it were a party thereto as a recipient of confidential information thereunder, and that such Shareholder shall not disclose any such confidential information except as otherwise permitted by the Confidentiality Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, in the event that this Section 4(a) or the Confidentiality Agreement conflicts with any other covenant or agreement contained in this Agreement, the Business Combination Agreement, or any Ancillary Document that contemplates the disclosure, use or provision of information or otherwise, then such other covenant or agreement contained in this Agreement, the Business Combination Agreement or such Ancillary Document, as applicable, shall govern and control to the extent of such conflict.
(b) Public Announcements. Each Shareholder agrees that neither it nor any of its Representatives shall issue any press releases or make any public announcements with respect to this Agreement or the Business Combination Agreement or the transactions contemplated hereby and thereby without the prior written consent of the Company and ENVI; provided, however, that each Shareholder and its Representatives may make any such announcement or other communication (i) if such press release, announcement or other communication is required by applicable Law, in which case (A) prior to the Closing, the disclosing Shareholder shall, to the extent permitted by such applicable Law, use commercially reasonable efforts to consult with the Company and ENVI and give each of the Company and ENVI the opportunity to review such announcement or communication and comment thereon and the disclosing Shareholder shall consider such comments in good faith, or (B) after the Closing, the disclosing Shareholder and/or its Representatives, as applicable, shall, to the extent permitted by such applicable Law, use commercially reasonable efforts to consult with ENVI and give ENVI the opportunity to review such announcement or communication and comment thereon and the disclosing Person shall consider such comments in good faith, (ii) to the extent such press release, announcement or other communication contains only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 4(b) and (iii) to Governmental Entities in connection with any Consents required to be obtained or made under this Agreement, the Business Combination Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.
(c) Exclusive Dealing. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, each Shareholder shall not, and shall cause its Representatives and controlled Affiliates not to, directly or indirectly: (i) solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that
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constitutes, or could reasonably be expected to lead to, an ENVI Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, an ENVI Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding (whether or not binding) regarding an ENVI Acquisition Proposal; (iv) make any filings or submissions with the SEC in connection with any offering of any Equity Securities, or other securities, of any ENVI Party, other than any such filings or submissions required or otherwise expressly contemplated by the Business Combination Agreement; or (v) otherwise cooperate in any way with, or assist or participate in any negotiations or discussions with, any Person in connection any ENVI Acquisition Proposal or a transaction of the type in clause (iv) (other than to inform such Person of the existence of such Shareholders obligations under this Section 4(c)).
(d) Acknowledgement of Reliance. Each Shareholder acknowledges and agrees that the Company is entering into the Business Combination Agreement in reliance upon such Shareholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and without such Shareholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement, the Company would not have entered into or agreed to consummate the transactions contemplated by the Business Combination Agreement or the Ancillary Documents.
(e) Waiver of Redemption. Each Shareholder hereby agrees that it shall not participate in or effect, or submit a request to participate in or effect any ENVI Shareholder Redemption with respect to any Subject ENVI Securities held by him, her or it, provided however, that nothing in this Section 4(e) or otherwise shall prohibit or restrict HB Strategies from redeeming any securities of ENVI other than the Subject ENVI Securities, including without limitation those acquired in the open market, privately negotiated transactions, the ENVI initial public offering or otherwise.
(f) Further Assurances. From time to time, at the Companys request and without further consideration, each Shareholder shall execute and deliver such additional documents and take all further action as may be reasonably necessary or reasonably requested to effect the actions and consummate the transactions contemplated by this Agreement. Each Shareholder further agrees not to commence or participate (in a manner adverse to ENVI or the Company) in, and to take all actions necessary to opt out of any class in any class action with respect to, any Proceeding, derivate or otherwise, against ENVI, the Company or any of their respective Affiliates, challenging the transactions contemplated by the Business Combination Agreement or disputing the allocation of the consideration payable as part of the Merger pursuant to the terms of the Business Combination Agreement (including any Proceeding (a) challenging the validity of, or seeking to enjoin the operation of, any provision of the Business Combination Agreement or (b) alleging breach of any fiduciary duty of the ENVI Board in connection with this Agreement, the Business Combination Agreement, any other Ancillary Agreement or any of the transactions contemplated hereby or thereby), except for any Proceeding to enforce such Shareholders right under the Investor Rights Agreement following the Closing.
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(g) Authorization to Publish. Each Shareholder hereby authorizes ENVI and the Company to publish and disclose in any announcement, filing or disclosure required to be made by any Order or other applicable Law or the rules of any national securities exchange or as requested by the SEC such Shareholders identity and ownership of Equity Securities of the Company or ENVI and the nature of such Shareholders obligations under this Agreement.
(h) Forfeiture. If more than 25% of the ENVI Class A Shares issued and outstanding as of the date hereof are redeemed by the holders of such shares in accordance with the terms of ENVIs Governing Documents, then, (i) immediately prior to the Closing, HB Strategies will forfeit a number of ENVI Warrants equal to the HB Pro Rata Share of the Forfeited Warrants (the HB Forfeited Warrants), and (ii) immediately prior to the Closing, Sponsor will forfeit a number of ENVI Warrants equal to the Sponsor Pro Rata Share of the Forfeited Warrants (the Sponsor Forfeited Warrants). To the extent HB Strategies and Sponsor are required to forfeit any such warrants, as applicable, in accordance with this Section 4(h), then immediately prior to the Closing, HB Strategies and Sponsor, as applicable, will (and, subject only to the occurrence of the Closing does), irrevocably surrender, forfeit and transfer to ENVI, for no consideration and without any further right thereto, and consents to the termination and cancellation of the HB Forfeited Warrants (and any other Equity Securities into which the HB Forfeited Warrants may have been converted or for which such HB Forfeited Warrants may have been exercised or exchanged) and the Sponsor Forfeited Warrants (and any other Equity Securities into which the Sponsor Forfeited Warrants may have been converted or for which such Sponsor Forfeited Warrants may have been exercised or exchanged). For purposes of this Section 4(h): Forfeited Warrants shall mean 25% of the total number of outstanding ENVI Warrants as of the date hereof (and shall include any other Equity Securities into which the Forfeited Warrants are or have been converted or for which such Forfeited Warrants are or have been exercised or exchanged, and any other securities issued in respect of any Forfeited Warrants in connection with a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of any such securities); HB Pro Rata Share shall mean the number of ENVI Warrants held by HB Strategies divided by the total number of ENVI Warrants held by both Sponsor and HB Strategies; and Sponsor Pro Rata Share shall mean the number of ENVI Warrants held by Sponsor divided by the total number of ENVI Warrants held by both Sponsor and HB Strategies.
5. Shareholder Representations and Warranties. Each Shareholder represents and warrants, solely with respect to himself, herself or itself and not any of the other Shareholders, to the Company as follows:
(a) If such Shareholder is an entity, such Shareholder is a corporation, limited liability company or other applicable business entity duly organized or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of formation or organization (as applicable).
(b) If such Shareholder is an entity, such Shareholder has the requisite corporate, limited liability company or other similar power and authority or, if such Shareholder is an individual, has the legal capacity and the requisite power and authority to execute and deliver this Agreement, to perform his, her or its covenants, agreements and obligations
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hereunder (including, for the avoidance of doubt, those covenants, agreements and obligations hereunder that relate to the provisions of the Business Combination Agreement), and to consummate the transactions contemplated hereby. If such Shareholder is an entity, the execution and delivery of this Agreement has been duly authorized by all necessary corporate (or other similar) action on the part of such Shareholder. This Agreement has been duly and validly executed and delivered by such Shareholder and constitutes a valid, legal and binding agreement of such Shareholder (assuming that this Agreement is duly authorized, executed and delivered by the other Parties hereto), enforceable against such Shareholder in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors rights and subject to general principles of equity).
(c) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of such Shareholder with respect to such Shareholders execution, delivery or performance of his, her or its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby, except for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not adversely affect the ability of such Shareholder to perform, or otherwise comply with, any of his, her or its covenants, agreements or obligations hereunder in any material respect.
(d) None of the execution or delivery of this Agreement by such Shareholder, the performance by such Shareholder of any of his, her or its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) if such Shareholder is an entity, result in any breach of any provision of such Shareholders Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which such Shareholder is a party, (iii) violate, or constitute a breach under, any Order or applicable Law to which such Shareholder or any of his, her or its properties or assets are bound or (iv) result in the creation of any Lien upon the Subject ENVI Securities, except, in the case of any of clauses (ii) through (iv) above, as would not adversely affect the ability of such Shareholder to perform, or otherwise comply with, any of his, her or its covenants, agreements or obligations hereunder in any material respect.
(e) Such Shareholder is the record and beneficial owner of the Subject ENVI Securities and has valid, good and marketable title to the Subject ENVI Securities, free and clear of all Liens (other than transfer restrictions under applicable Securities Law, under the Governing Documents of ENVI, under the Ancillary Documents or under the other Contracts set forth on Section 4.6(a) of the ENVI Disclosure Schedules). Except for the Equity Securities of ENVI set forth on Schedule II hereto, together with any other Equity Securities of ENVI that such Shareholder acquires record or beneficial ownership after the date hereof, such Shareholder
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does not own, beneficially or of record, any Equity Securities of ENVI or have the right to acquire any Equity Securities of ENVI. Such Shareholder has the sole right to vote (and provide consent in respect of, as applicable) the Subject ENVI Securities and, except for this Agreement, the Business Combination Agreement, the Governing Documents of ENVI, the Ancillary Documents, the Contracts set forth on Section 4.6(a) of the ENVI Disclosure Schedules, or any proxy given for purposes of voting in favor of the Transaction Proposals, such Shareholder is not party to or bound by (i) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more other developments or events (including the satisfaction or waiver of any conditions precedent)) require such Shareholder to Transfer any of the Subject ENVI Securities or (ii) any voting trust, proxy or other Contract with respect to the voting or Transfer of any of the Subject ENVI Securities in a manner inconsistent with the requirements of this Agreement. The Shareholders, collectively, hold 100% of the issued and outstanding ENVI Class B Shares as of the date hereof.
(f) There is no Proceeding pending or, to such Shareholders knowledge, threatened in writing against or involving such Shareholder or any of his, her or its Affiliates that, if adversely decided or resolved, would reasonably be expected to adversely affect the ability of such Shareholder to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement in any material respect.
(g) Such Shareholder, on his, her or its own behalf and on behalf of his, her or its Representatives, acknowledges, represents, warrants and agrees that (i) he, she or it has conducted his, her or its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of, the Company and the transactions contemplated by this Agreement, the Business Combination Agreement and the other Ancillary Documents to which he, she or it is or will be a party and (ii) he, she or it has been furnished with or given access to such documents and information about the Company and their respective businesses and operations as he, she or it and his, her or its Representatives have deemed necessary to enable him, her or it to make an informed decision with respect to the execution, delivery and performance of this Agreement or the other Ancillary Documents to which he, she or it is or will be a party and the transactions contemplated hereby and thereby.
(h) In entering into this Agreement and the other Ancillary Documents to which he, she or it is or will be a party, such Shareholder has relied solely on his, her or its own investigation and analysis and the representations and warranties expressly set forth in the Ancillary Documents to which he, she or it is or will be a party and no other representations or warranties of the Company (including, for the avoidance of doubt, none of the representations or warranties of the Company set forth in the Business Combination Agreement or any other Ancillary Document to which such Shareholder is not and will not be a party) or any other Person, either express or implied, and such Shareholder, on his, her or its own behalf and on behalf of his, her or its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in this Agreement or in the other Ancillary Documents to which he, she or it is or will be a party, none of the Company or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Business Combination Agreement or the other Ancillary Documents or the transactions contemplated hereby or thereby.
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(i) Such Shareholder hereby acknowledges and agrees that he, she, or it shall not receive (whether in his, her or its capacity as a shareholder of ENVI or otherwise) from ENVI any finders fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the transactions contemplated by the Business Combination Agreement, except as otherwise expressly contemplated by the Business Combination Agreement, and excluding, for the avoidance of doubt, his, her or its ENVI Shares.
6. Termination. This Agreement (including the proxy granted pursuant to Section 1) shall automatically terminate, without any notice or other action by any Party, and be void ab initio upon the earliest of (a) the Effective Time, (b) the termination of the Business Combination Agreement in accordance with its terms and (c) the mutual written agreement of the Parties. Upon termination of this Agreement as provided in the immediately preceding sentence, none of the Parties shall have any further obligations or Liabilities under, or with respect to, this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) the termination of this Agreement pursuant to Section 6(b) shall not affect any Liability on the part of any Party for a Willful Breach of any covenant or agreement set forth in this Agreement prior to such termination or Fraud, (ii) Section 4(a) (Confidentiality) and the representations and warranties set forth in Sections 5(g) and (h) shall each survive any termination of this Agreement, (iii) Section 4(b) (Public Announcements) and Section 17 shall each survive the termination of this Agreement pursuant to Section 6(a), and (iv) this Section 6, Section 7, Section 8, Section 13, Section 15, Section 16 and Sections 9 through 12, 14 and 18 through 23 (to the extent related to any of the provisions that survive the termination of this Agreement) shall survive any termination of this Agreement. For purposes of this Section 6, (x) Willful Breach means a material breach that is a consequence of an act undertaken or a failure to act by the breaching Party with the knowledge that the taking of such act or such failure to act would, or would reasonably be expected to, constitute or result in a breach of this Agreement and (y) Fraud means an act or omission by a Party, and requires: (A) a false or incorrect representation or warranty expressly set forth in this Agreement, (B) with actual knowledge (as opposed to constructive, imputed or implied knowledge) by the Party making such representation or warranty that such representation or warranty expressly set forth in this Agreement is false or incorrect, (C) an intention to deceive another Party, to induce him, her or it to enter into this Agreement, (D) another Party, in justifiable or reasonable reliance upon such false or incorrect representation or warranty expressly set forth in this Agreement, causing such Party to enter into this Agreement, and (E) another Party to suffer damage by reason of such reliance. For the avoidance of doubt, Fraud does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud or any torts (including a claim for fraud or alleged fraud) based on negligence or recklessness.
7. No Recourse. Except for claims pursuant to the Business Combination Agreement or any other Ancillary Document by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein, each Party agrees that (a) this Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and no claims of any nature whatsoever (whether in tort, contract or otherwise) arising under or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby shall be asserted against any Company Affiliated Party or any ENVI Affiliated Party (other than the Shareholders named as parties
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hereto, on the terms and subject to the conditions set forth herein), and (b) no Company Affiliated Party or ENVI Affiliated Party (other than the Shareholders named as parties hereto, on the terms and subject to the conditions set forth herein), shall have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished in connection with this Agreement, the negotiation hereof or the transactions contemplated hereby. Notwithstanding anything to the contrary in this Agreement, (i) in no event shall any Shareholder have any obligations or Liabilities related to or arising out of the covenants, agreements, obligations, representations or warranties of any other Shareholder under this Agreement (including related to or arising out of the breach of any such covenant, agreement, obligation, representation or warranty by any other Shareholder), and (ii) in no event shall ENVI have any obligations or Liabilities related to or arising out of the covenants, agreements, obligations, representations or warrants of any Shareholder under this Agreement (including related to or arising out of any breach of any such covenant, agreement, obligation, representation or warranty by any Shareholder).
8. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) each Shareholder makes no agreement or understanding herein in any capacity other than in such Shareholders capacity as a record holder and/or beneficial owner of such Shareholders Subject ENVI Securities, and not, in the case of each Other Class B Shareholder, in such Other Class B Shareholders capacity as a director, officer or employee of any ENVI Party, and (b) nothing herein will be construed to limit or affect any action or inaction by each Other Class B Shareholder or any representative of the Sponsor serving as a member of the board of directors (or other similar governing body) of any ENVI Party or as an officer, employee or fiduciary of any ENVI Party, in each case, acting in such persons capacity as a director, officer, employee or fiduciary of such ENVI Party.
9. No Third-Party Beneficiaries. This Agreement shall be for the sole benefit of the Parties and their respective successors and permitted assigns and is not intended, nor shall be construed, to give any Person, other than the Parties and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever by reason this Agreement. Nothing in this Agreement, expressed or implied, is intended to or shall constitute the Parties, partners or participants in a joint venture.
10. 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) by delivery in person, by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the e-mail was sent to the intended recipient thereof without an error or similar message that such e-mail was not received by such intended recipient)), by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) or by reputable overnight courier (fees prepaid) (upon the next Business Day) to the other Parties, as applicable, as follows:
(a) If to ENVI prior to the Effective Time, to:
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Environmental Impact Acquisition Corp.
535 Madison Avenue
New York, NY 10022
Attention: Legal Department
E-mail: lteipner@cgf.com
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, CA 90067
Attention: Steven B. Stokdyk and Brian Duff
E-mail: steven.stokdyk@lw.com; brian.duff@lw.com
(b) If to the Company prior to the Effective Time or to ENVI after the Effective Time, to:
GreenLight Biosciences, Inc.
200 Boston Avenue, Suite 3100
Medford, MA 02155
Attention: General Counsel
Email: notices@greenlightbio.com
with a copy (which shall not constitute notice) to:
Foley Hoag LLP
155 Seaport Blvd.
Boston, MA 02210
Attention: David A. Broadwin and John D. Hancock
E-mail: dab@foleyhoag.com; jdh@foleyhoag.com
and with a copy (which shall not constitute notice) to:
Foley Hoag LLP
1301 Avenue of the Americas, 25th Floor.
New York, NY 10019
Attention: Adrienne Ellman
E-mail: aellman@foleyhoag.com
(c) If to Sponsor or any Other Class B Shareholder, to:
CG Investments Inc. VI
535 Madison Avenue
New York, NY 10022
Attention: Legal Department
E-mail: lteipner@cgf.com
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with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, CA 90067
Attention: Steven B. Stokdyk
E-mail: steven.stokdyk@lw.com
(d) If to HB Strategies LLC, to:
c/o Hudson Bay Capital Management LP
28 Havemeyer Place
Greenwich, CT 06830
Attn: Direct Investments Team
investments@hudsonbaycapital.com
or to such other address as the Party to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
11. Entire Agreement. This Agreement, the Business Combination Agreement and documents referred to herein and therein constitute the entire agreement among the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous agreements and undertakings, both written and oral, among the Parties with respect to the subject matter of this Agreement, except as otherwise expressly provided in this Agreement.
12. Amendments and Waivers; Assignment. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by each Party hereto. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or of any other right hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assignable by any Party without each other Partys prior written consent (to be withheld or given in its sole discretion). Any attempted assignment of this Agreement not in accordance with the terms of this Section 12 shall be void.
13. Fees and Expenses. Without limiting the Companys rights under the Business Combination Agreement, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses.
14. Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity, upon such Party, and the exercise by a Party of any one remedy shall not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that any Party does not perform his, her or its obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breach such
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provisions. It is accordingly agreed that each Party shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that it shall not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that any other Party has an adequate remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity.
15. No Ownership Interest. Nothing contained in this Agreement will be deemed to vest in the Company any direct or indirect ownership or incidents of ownership of or with respect to the Subject ENVI Securities. All rights, ownership and economic benefits of and relating to the Subject ENVI Securities shall remain vested in and belong to the applicable Shareholder, and the Company shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of ENVI or exercise any power or authority to direct such Shareholder in the voting of any of the Subject ENVI Securities, except as otherwise expressly provided herein with respect to the Subject ENVI Securities. Except as otherwise expressly provided in Section 1, no Shareholder shall be restricted from voting in favor of, against or abstaining with respect to or giving (or withholding) such Shareholders written consent to any other matters presented to the shareholders of ENVI.
16. Acknowledgements. Each Party acknowledges that (a) Latham & Watkins LLP, counsel for ENVI and Sponsor, is only representing ENVI and Sponsor in connection with this Agreement, the Business Combination Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, and (b) Foley Hoag LLP, counsel for the Company, is only representing the Company in connection with this Agreement, the Business Combination Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby. Each Shareholder acknowledges that (i) neither of the foregoing firms is representing HB Strategies or the Other Class B Shareholders in connection with this Agreement, the Merger, the Business Combination Agreement, the Ancillary Documents or the transactions contemplated hereby, thereby or otherwise and (ii) each of HB Strategies and the Other Class B Shareholders acknowledges that he, she or it has had the opportunity to consult with his, her or its own counsel.
17. Non-Survival. The representations and warranties, and each of the agreements and covenants (to the extent such agreement or covenant contemplates or requires performance at or prior to the Effective Time) in this Agreement shall terminate at the Effective Time. Each covenant and agreement contained herein that, by its terms, expressly contemplates performance after the Effective Time shall so survive the Effective Time in accordance with its terms.
18. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.
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19. Construction; Interpretation. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, herein, hereto, hereof and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) the masculine gender shall also include the feminine and neutral genders, and vice versa; (c) words importing the singular shall also include the plural, and vice versa; (d) the words include, includes or including shall be deemed to be followed by the words without limitation; (e) references to $ or dollar or US$ shall be references to United States dollars; (f) the word or is disjunctive but not necessarily exclusive; (g) the words writing, written and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (h) the word day means calendar day unless Business Day is expressly specified; (i) the word extent in the phrase to the extent means the degree to which a subject or other thing extends, and such phrase shall not mean simply if; (j) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement; (k) all references to any Law will be to such Law as amended, supplemented or otherwise modified or re-enacted from time to time; and (l) all references to any Contract are to that Contract as amended or modified from time to time in accordance with the terms thereof (subject to any restrictions on amendments or modifications set forth in this Agreement). If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter.
20. Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall 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 of this Agreement is invalid, illegal or unenforceable under applicable Law, 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 an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
21. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by e-mail, DocuSign (or similar platform) or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement.
22. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED
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OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS AGREEMENT OR A COPY THEREOF WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 22.
23. Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, the Superior Court of the State of Delaware, or the United States District Court for the District of Delaware), for the purposes of any Proceeding, claim, demand, action or cause of action (a) arising under this Agreement or (b) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any of the transactions contemplated hereby or any of the transactions contemplated thereby. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding, claim, demand, action or cause of action against such Party (i) arising under this Agreement or (ii) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any of the transactions contemplated hereby or any of the transactions contemplated thereby, (A) any claim that such Party is not personally subject to the jurisdiction of the courts as described in this Section 23 for any reason, (B) any claim that such Party or such Partys property is exempt or immune from the 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) any claim that (x) the Proceeding, claim, demand, action or cause of action in any such court is brought against such Party in an inconvenient forum, (y) the venue of such Proceeding, claim, demand, action or cause of action against such Party is improper or (z) this Agreement, or the subject matter hereof, may not be enforced against such Party in or by such courts. Each Party agrees that service of any process, summons, notice or document by registered mail or overnight courier to such Partys address set forth in Section 10 shall be effective service of process for any such Proceeding, claim, demand, action or cause of action.
[Signature page follows]
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed on its behalf as of the day and year first above written.
ENVIRONMENTAL IMPACT ACQUISITION CORP. | ||
By: | /s/ Daniel Coyne | |
Name: Daniel Coyne | ||
Title: Chief Executive Officer and Director | ||
GREENLIGHT BIOSCIENCES, INC. | ||
By: | /s/ Andrey Zarur | |
Name: Andrey Zarur, Ph.D. | ||
Title: Chief Executive Officer | ||
CG INVESTMENTS INC. VI | ||
By: | /s/ Jeffrey Barlow | |
Name: Jeffrey Barlow | ||
Title: Director | ||
HB STRATEGIES LLC | ||
By: | /s/ George Antonopoulos | |
Name: George Antonopoulos | ||
Title: Authorized Signatory |
OTHER CLASS B SHAREHOLDERS |
/s/ David Brewster |
David Brewster |
/s/ Dean Seavers |
Dean Seavers |
/s/ Deval L. Patrick |
Deval L. Patrick |
[Signature Page to Sponsor Letter Agreement]
SCHEDULE I
Other Class B Shareholders
David Brewster
Dean Seavers
Deval L. Patrick
SCHEDULE II
Equity Securities as of August 9, 2021
HB Strategies and Affiliates
1,000,000 ENVI Class A Shares
500,000 warrants to purchase ENVI Class A Shares
2,000,000 Private Placement Warrants
3,105,000 ENVI Class B Shares
Tech Opportunities, LLC, an affiliate of HB Strategies LLC, is making a commitment to acquire 600,000 shares of ENVIs Class A Common Stock pursuant to a Subscription Agreement being executed contemporaneously with the Business Combination Agreement.
Sponsor
1,552,500 ENVI Class B Shares
600,000 Private Placement Warrants
Dean Seavers
172,500 ENVI Class B Shares
50,000 Private Placement Warrants
David Brewster
172,500 ENVI Class B Shares
50,000 Private Placement Warrants
Deval Patrick
172,500 ENVI Class B Shares
50,000 Private Placement Warrants
EXHIBIT A
Form of Confidentiality Agreement
Exhibit 10.2
SUBSCRIPTION AGREEMENT
August 9, 2021
In connection with the proposed business combination (the Transaction) between Environmental Impact Acquisition Corp., a Delaware corporation (the Company), and GreenLight Biosciences, Inc., a Delaware corporation (the Target), pursuant to that certain Business Combination Agreement, dated as of August 9, 2021 (as it may be amended, the Transaction Agreement), by and among the Company, the Target and certain other parties named therein, the Company is seeking commitments from interested investors to purchase, prior to the consummation of the Transaction, shares of the Companys Class A Common Stock, par value $0.0001 per share (the Common Stock), for a purchase price of $10.00 per share (the Purchase Price per Share and the aggregate of such Purchase Price per Share for all Shares (as defined below) being referred to herein as the Purchase Price), in a private placement to be conducted by the Company (the Offering).
On the date set forth on the signature page of this subscription agreement (this Subscription Agreement), the Company is entering into subscription agreements (the Other Subscription Agreements and together with the Subscription Agreement, the Subscription Agreements) with certain other subscribers (the Other Subscribers and together with the undersigned, the Subscribers), which are on substantially the same terms as the terms of this Subscription Agreement, pursuant to which the Subscribers, severally and not jointly, have agreed to purchase on the closing date of the Transaction, inclusive of the shares of Common Stock to be purchased by the undersigned, an aggregate amount of up to [______] shares of Common Stock, at the Purchase Price per Share. In connection therewith, the undersigned subscriber (the Subscriber) and the Company agree as follows:
1. Subscription. Subject to the terms and conditions hereof, at the Closing (as defined below), the Subscriber hereby subscribes for and agrees to purchase from the Company, and the Company hereby agrees to issue and sell to the Subscriber, such number of shares of Common Stock as is set forth on the signature page of this Subscription Agreement (the Shares) at the Purchase Price per Share and on the terms provided for herein.
2. Closing; Delivery of Shares.
(a) The closing of the sale of Shares contemplated hereby (the Closing, and the date that the Closing actually occurs, the Closing Date) is contingent upon the substantially concurrent consummation of the Transaction (the Transaction Closing). The Closing shall occur on the date of, and immediately prior to, the Transaction Closing.
(b) The Company shall provide written notice (which may be via email) to the Subscriber (the Closing Notice) that the Company reasonably expects all conditions of the Transaction Closing to be satisfied or waived on a date specified in the notice (the Scheduled Closing Date) that is not less than five (5) business days from the date on which the Closing Notice is delivered to the Subscriber, which Closing Notice shall contain (i) such Scheduled Closing Date and (ii) the Companys wire instructions for an escrow account (the Escrow Account) established by the Company with a third-party escrow agent (the Escrow Agent) to
be identified in the Closing Notice (or such other account as agreed by the Company and the Subscriber). No later than two (2) business days prior to the Scheduled Closing Date, the Subscriber shall deliver to the Company such information as is reasonably requested in the Closing Notice in order for the Company to issue the Shares to the Subscriber. Further, subject to the satisfaction or waiver of the conditions set forth in this Section 2 and Section 3, the Subscriber shall deliver to the Company, prior to 10:00 a.m. (Eastern Time) on the Scheduled Closing Date, the Purchase Price for the Shares by wire transfer of United States dollars in immediately available funds (i) to the Escrow Account or (ii) to an account specified by the Company (Alternative Settlement Procedures), against delivery to the Subscriber on the Closing Date of the Shares in book-entry form, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws and those arising under separate legal or contractual obligations of the Subscriber), in the name of the Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by the Subscriber, as applicable. On the Closing Date, the Company shall deliver to the Subscriber a copy of the records of the Company or its transfer agent showing the Subscriber (or its nominee or custodian) as the owner of the Shares on and as of the Closing Date (the Subscribers Deliveries).Unless otherwise provided pursuant to Alternative Settlement Procedures, upon transfer of the Subscribers Deliveries by the Company to the Subscriber (or its nominee in accordance with its delivery instructions), the Escrow Agent shall release the Purchase Price from the Escrow Account to the Company. If this Subscription Agreement is terminated prior to the Closing and any funds have already been sent by the Subscriber to the Escrow Account, then promptly after such termination, the Company will instruct the Escrow Agent to promptly return such funds to the Subscriber. If the Transaction Closing does not occur within three (3) business days of the Scheduled Closing Date, unless otherwise instructed by the Company and the Subscriber, the Escrow Agent or the Company, as applicable, shall promptly (but not later than one (1) business day thereafter) return the Purchase Price to the Subscriber by wire transfer of U.S. dollars in immediately available funds to the account specified by the Subscriber, and any book entries shall be deemed cancelled; provided, however, that unless this Subscription Agreement has been terminated pursuant to Section 7 below, such return of funds shall not terminate this Subscription Agreement or relieve the Subscriber of its obligation to redeliver funds to the Escrow Agent or the Company on the new Closing Date following the Companys redelivering to the Subscriber a new Closing Notice and to purchase the Shares at the Closing.
3. Closing Conditions. In addition to the conditions set forth in Section 2:
(a) The Closing is also subject to the satisfaction or valid waiver by each party of the conditions that, on the Closing Date:
(i) | no suspension of the qualification of the Shares for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have occurred and be continuing; |
(ii) | no governmental authority of competent jurisdiction shall have rendered, issued, promulgated, enforced, enacted or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and which then makes the consummation of the transactions |
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contemplated hereby illegal or then restrains or prohibits the consummation of the transactions contemplated hereby; and |
(iii) | all conditions precedent to the Transaction Closing set forth in the Transaction Agreement, including all necessary approvals of the Companys stockholders and regulatory approvals, if any, shall have been satisfied or waived (other than those conditions which, by their nature, are to be satisfied at the Transaction Closing). |
(b) The obligations of the Company to consummate the Closing are also subject to the satisfaction or valid waiver by the Company of the additional conditions that, on the Closing Date:
(i) | all representations and warranties of the Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) as of such date); and |
(ii) | the Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing except where the failure of such performance or compliance would not delay, or materially impair, the ability of the Subscriber to consummate the Closing. |
(c) The obligations of the Subscriber to consummate the Closing are also subject to the satisfaction or valid waiver by the Subscriber of the additional conditions that, on the Closing Date:
(i) | all representations and warranties of the Company contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such date); |
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(ii) | the Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing; |
(iii) | the terms of the Transaction Agreement (as in effect on the date hereof, including the conditions thereto), shall not have been amended or waived in a manner that would reasonably be expected to be materially adverse to the economic benefits of the Common Stock to be received under this Subscription Agreement; |
(iv) | There shall have been no amendment, waiver or modification to any Other Subscription Agreement that materially benefits one or more Other Subscribers unless the Subscriber shall have been offered the same benefits; and |
(v) | The Company shall have filed with the Nasdaq Stock Market, Inc. (NASDAQ) an application or supplemental listing application for listing of the Shares and the Shares shall have been approved for listing on NASDAQ, subject to official notice of issuance. |
(d) Prior to or at the Closing, upon request of the Company, the Subscriber shall deliver to the Company a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
(e) The Company and the Subscriber shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the transactions contemplated in this Subscription Agreement.
4. Company Representations and Warranties. The Company represents and warrants to the Subscriber that:
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has the corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
(b) The Shares have been duly authorized and, when issued and delivered to the Subscriber against full payment therefor in accordance with the terms of this Subscription Agreement, the Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Companys Amended and Restated Certificate of Incorporation, the Companys bylaws or under the laws of the State of Delaware.
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(c) This Subscription Agreement and the Transaction Agreement (the Transaction Documents) have been duly authorized, executed and delivered by the Company and are enforceable against the Company in accordance with their respective terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
(d) The execution, delivery and performance of the Transaction Documents, including the issuance and sale of the Shares and the consummation of the transactions contemplated hereby, will not conflict with or result in a material breach or material violation of any of the terms or provisions of, or constitute a material default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, license, lease or any other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company is subject, which would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, properties, assets, liabilities, operations (including results of operations), condition (including financial condition), stockholders equity or results of operations of the Company (a Material Adverse Effect) or materially affect the validity of the Shares or the legal authority or ability of the Company to perform in all material respects its obligations under the terms of this Subscription Agreement; (ii) the provisions of the organizational documents of the Company; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that would have a Material Adverse Effect or materially affect the validity of the Shares or the legal authority or ability of the Company to perform in all material respects its obligations under the terms of this Subscription Agreement.
(e) Assuming the accuracy of the representations and warranties of the Subscriber (and the similar representations and warranties of the Other Subscribers under the Other Subscription Agreements), the Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by the Company of this Subscription Agreement (including the issuance of the Shares), other than (i) any required filing of a Notice of Exempt Offering of Securities on Form D with the U.S. Securities and Exchange Commission (the SEC) under Regulation D of the Securities Act of 1933, as amended (the Securities Act), (ii) the filing with the SEC of the Registration Statement (as defined below), (iii) the filings required by applicable state or federal securities laws, (iv) the filings required in accordance with Section 11, (v) any filings or notices required by NASDAQ, (vi) the filing of notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, if applicable, and (vii) any consent, waiver, authorization or order of, notice to, or filing or registration, the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, (A) a Material Adverse Effect or (B) a material adverse effect on the Companys ability to consummate the transactions contemplated hereby, including the sale and issuance of the Shares to the Subscriber.
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(f) Other than as set forth in the Transaction Agreement, there are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Shares or (ii) the shares to be issued pursuant to any Other Subscription Agreement that have not been or will not be validly waived on or prior to the Closing Date.
(g) As of the date of this Subscription Agreement (and immediately prior to the filing of the Amended and Restated Certificate of Incorporation of the Company pursuant to the terms of the Transaction Agreement), the authorized capital stock of the Company consists of (i) 100,000,000 shares of Common Stock, (ii) 20,000,000 shares of Class B Common Stock, par value $0.0001 per share (the Class B Common Stock) and (iii) 1,000,000 shares of Preferred Stock, par value $0.0001 per share (the Preferred Stock). As of the date of this Subscription Agreement (and immediately prior to the filing of the Amended and Restated Certificate of Incorporation of the Company pursuant to the terms of the Transaction Agreement), (A) 20,700,000 shares of Common Stock are issued and outstanding, (B) 5,175,000 shares of Class B Common Stock are issued and outstanding, (C) 13,100,000 warrants to purchase Common Stock are issued and outstanding and (D) no Preferred Stock is issued and outstanding. All (1) issued and outstanding shares of Common Stock and Class B Common Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (2) outstanding warrants have been duly authorized and validly issued and are not subject to preemptive rights. Except as set forth above and pursuant to the Other Subscription Agreements, the Transaction Agreement and the other agreements and arrangements referred to therein or in the SEC Documents (as defined below), as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company shares of Common Stock, Class B Common Stock or other equity interests in the Company, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, the Company has no subsidiaries, other than subsidiaries formed for purposes of the Transaction, and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting of any securities of the Company, other than (1) as set forth in the SEC Documents and (2) as contemplated by the Transaction Agreement.
(h) The issued and outstanding shares of Common Stock are registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and are listed for trading on NASDAQ under the symbol ENVI. (The Company notes that the symbol will change upon the closing of the Transaction.) There is no suit, action, proceeding or disclosed investigation pending or, to the knowledge of the Company, threatened against the Company by NASDAQ or the SEC with respect to any intention by such entity to deregister the Common Stock or prohibit or terminate the listing of the Common Stock on NASDAQ, excluding, for the purposes of clarity, the customary ongoing review by NASDAQ of the Companys listing application with respect to the Transaction. The Company has taken no action that is designed to terminate the registration of the Common Stock under the Exchange Act prior to the Closing.
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(i) Other than the Other Subscription Agreements, the Transaction Agreement and any other agreement contemplated by the Transaction Agreement, the Company has not entered into any side letter or similar agreement with any Other Subscriber or any other investor in connection with such Other Subscribers or investors direct or indirect investment in the Company. The Other Subscription Agreements reflect the same Purchase Price Per Share. No Other Subscription Agreement includes terms and conditions that are materially more advantageous to any such Other Subscriber than to the Subscriber hereunder, and such Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement.
(j) The Company has made available to the Subscriber (including via the SECs EDGAR system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy statement, registration statement and other document filed by the Company with the SEC prior to the date of this Subscription Agreement (the SEC Documents). None of the SEC Documents filed under the Exchange Act contained, when filed (or, if amended, when amended), any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and such SEC Documents (if amended, when amended) complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder. The Company has timely filed (subject to Rule 12b-25 under the Exchange Act) each report, statement, schedule, prospectus, proxy statement, registration statement and other document that the Company was required to file with the SEC since its initial registration of the Common Stock with the SEC. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the Staff of the SEC with respect to any of the SEC Documents. Other than as disclosed in the SEC Documents, the financial statements of the Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly represent in all material respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited financial statements, to normal, year-end audit adjustments.
(k) Except for such matters as have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, there is no (i) action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of the Company, threatened against the Company or (ii) judgment, decree, injunction, ruling or order of any governmental entity outstanding against the Company.
(l) The Company is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have a Material Adverse Effect. The Company has not received any written communication from a governmental entity that alleges that the Company is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(m) The Company has not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other person to any brokers or finders fee or any other commission or similar fee in connection with the transactions contemplated by this Subscription Agreement for which the Subscriber could become liable. Other than SVB Leerink LLC (SVB Leerink) and Credit Suisse Securities (USA) LLC (Credit Suisse and together with SVB Leerink, the Placement Agents), the Company is not aware of any person that has been or will be paid (directly or indirectly) remuneration for acting as a placement agent in connection with the sale of any shares of Common Stock in the Offering.
(n) The Company is not, and immediately after receipt of payment for the Shares, will not be, an investment company within the meaning of the Investment Company Act of 1940, as amended.
(o) Assuming the accuracy of the Subscribers representations and warranties set forth in Section 5 (and the similar representations and warranties of the Other Subscribers under the Other Subscription Agreements), in connection with the offer, sale and delivery of the Shares in the manner contemplated by this Subscription Agreement, it is not necessary to register the Shares under the Securities Act. The Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
(p) There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting of any securities of the Company, other than (1) as set forth in the SEC Reports and (2) as contemplated by the Transaction Agreements.
(q) The Company understands that the foregoing representations and warranties shall be deemed material to and have been relied upon by the Subscriber.
5. Subscriber Representations, Warranties and Covenants. The Subscriber represents and warrants to the Company that:
(a) At the time the Subscriber was offered the Shares, it was, and as of the date hereof, the Subscriber is (i) a qualified institutional buyer (as defined in Rule 144A under the Securities Act) or, if Exhibit A hereto is completed and executed herewith, an institutional accredited investor (within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) satisfying the applicable requirements set forth on Exhibit A hereto, and accordingly, understands that the Offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J), and (ii) acquiring the Shares only for its own account and not for the account of others, and not on behalf of any other account or person or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Subscriber is not an entity formed for the specific purpose of acquiring the Shares.
(b) The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares delivered at the Closing have not been registered under the Securities Act. The Subscriber
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understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (ii) and (iii) in accordance with any applicable securities laws of the states of the United States and other jurisdictions, and that any certificates (if any) or any book entries representing the Shares delivered at the Closing shall contain a legend or restrictive notation to such effect and, as a result, the Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber further acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act, until, among other requirements, at least one year has elapsed from the time that the Company has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. The Company acknowledges and agrees that, notwithstanding anything herein to the contrary, the Shares may be pledged by Subscriber in connection with a bona fide margin agreement, which shall not be deemed to be a transfer, sale or assignment of the Shares hereunder, and Subscriber effecting a pledge of Shares shall not be required to provide the Company with any notice thereof or otherwise make any delivery to the Issuer pursuant to this Subscription Agreement.
(c) The Subscriber understands and agrees that the Subscriber is purchasing Shares directly from the Company. The Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to the Subscriber by or on behalf of the Company, or any of its officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Subscription Agreement) or by implication.
(d) The Subscribers acquisition, holding and disposition of the Shares do not and will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), Section 4975 of the Internal Revenue Code of 1986, as amended (the Code), or any applicable similar law.
(e) The Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares. Target has informed the Subscriber that upon the consummation of the Transaction, the holders of equity securities of the Target will be locked-up pursuant to the Companys bylaws. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has received (or in the case of documents filed with the SEC, had access to) and reviewed the following items (collectively, the Disclosure Documents): (i) the SEC Documents, including the final prospectus of the Company, dated as of January 15, 2021 and filed with the SEC on January 15, 2021 (the Prospectus), (ii) the Transaction Agreement, a copy of which will be filed by the Company with the SEC and (iii) the investor presentation by
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the Company and the Target most recently posted in the electronic data room made available to the Subscriber in connection herewith (the Investor Presentation). The undersigned understands the significant extent to which certain of the disclosures contained in item (i) above shall not apply following the Transaction Closing. The Subscriber acknowledges that the Company intends to file with the SEC a registration statement on Form S-4 with respect to the shares of Common Stock to be issued to stockholders of the Target in the Transaction, that such registration statement will contain detailed information regarding, among other things, the Transaction and the business, management, operations, properties, assets, liabilities, financial condition and results of operations of, and the risks faced by, the Target, and that the Subscriber has determined to participate in the Offering without such detailed information. The Subscriber represents and agrees that the Subscriber and the Subscribers professional advisor(s), if any, have had the full opportunity to ask the Companys management questions, receive such answers and obtain such information as the Subscriber and such Subscribers professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares.
(f) The Subscriber became aware of this Offering by means of direct contact between the Subscriber, on the one hand, and the Target, the Company, the Placement Agents or one or more representatives of the Target, the Company or the Placement Agents, on the other hand, and the Shares were offered to the Subscriber solely through such direct contact. The Subscriber did not become aware of this Offering, nor were the Shares offered to the Subscriber, by any other means. The Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Subscriber acknowledges that the Subscriber shall be responsible for any and all of the Subscribers tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company nor the Target has provided any tax advice or any other representation, warranty or guarantee regarding the tax consequences of the transactions contemplated by the Subscription Agreement.
(g) The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the Disclosure Documents and in the Companys filings with the SEC. The Subscriber is able to fend for itself in the transactions contemplated hereby and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, legal and tax advice as the Subscriber has considered necessary to make an informed investment decision.
(h) Alone, or together with any professional advisor(s), the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscribers investment in the Company. The Subscriber acknowledges specifically that a possibility of total loss exists. The Subscriber has exercised independent judgment in evaluating its participation in the Offering, and accordingly, the Subscriber understands that the Offering meets (i) the exemptions
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from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b).
(i) In making its decision to purchase the Shares, the Subscriber has relied solely upon the independent investigation made by the Subscriber, the Investor Presentation and the representations and warranties of the Company set forth herein. The Subscriber has determined, based on such independent investigation and any professional advice as it deems appropriate, that its purchase of the Shares and participation in the transactions contemplated by this Subscription Agreement (i) are consistent with its financial needs, objectives and condition, (ii) comply and are consistent with all investment policies, guidelines and other restrictions applicable to it, (iii) have been duly authorized and approved by all necessary action, and (iv) do not and will not violate or constitute a default under its charter, by-laws or other constituent document or under any law, rule, regulation, agreement or other obligation by which it is bound. The Subscriber represents and agrees that the Subscriber and the Subscribers professional advisor(s), if any, have (i) had the full opportunity to ask such questions, receive such answers and obtain such information as the Subscriber and such undersigneds professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and (ii) conducted and completed independent due diligence with respect to the Offering and the Shares. Without limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by the Placement Agents, the Company, the Target any of their respective affiliates or any of such persons or its affiliates control persons, officers, directors, employees or other representatives, legal counsel, financial advisors, accountants or agents concerning the Company, the Target or the Shares or the offer and sale of the Shares other than those representations and warranties included in this Subscription Agreement. The Subscriber acknowledges and agrees that the Placement Agents have not, acting in their role as placement agents to the Company, provided the Subscriber with any information or advice with respect to the Shares nor is such information or advice necessary or desired. The Placement Agents, acting in their role as placement agents to the Company, have not made and are not making any representation as to the Company or Target or the quality or value of the Shares and the Placement Agents, acting in their role as placement agents to the Company, may have acquired non-public information with respect to the Company or Target which the Subscriber agrees need not be provided to it. The Placement Agents, acting in their role as placement agents to the Company, have no responsibility with respect to the completeness or accuracy of any information or materials furnished to the Subscriber in connection with the transactions contemplated hereby.
(j) The Subscriber understands and agrees that no federal, state or foreign agency has passed upon or endorsed the merits of the Offering or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of any of the Disclosure Documents or any other information provided to the Subscriber or its professional advisors, if any.
(k) The Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation.
(l) The execution, delivery and performance by the Subscriber of this Subscription Agreement are within the powers of the Subscriber, have been duly authorized and will not
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constitute or result in a violation, breach or default under or conflict with any federal or state statute, rule or regulation applicable to the Subscriber, any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement, undertaking or instrument to which the Subscriber is a party or by which the Subscriber is bound or to which any of the property or assets of the Subscriber is subject, and will not violate any provisions of the Subscribers charter documents, including its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, the signatory has been duly authorized to execute the same, and this Subscription Agreement constitutes a legal, valid and binding obligation of the Subscriber, enforceable against the Subscriber in accordance with its terms.
(m) Neither the due diligence investigation conducted by the Subscriber in connection with making its decision to acquire the Shares nor any representations and warranties made by the Subscriber herein shall modify, amend or affect the Subscribers right to rely on the truth, accuracy and completeness of the Companys representations and warranties contained herein.
(n) The Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, or on the Foreign Sanctions Evaders, Foreign Financial Institutions Subject to Correspondent Account or Payable-Through Account Sanctions, Non-SDN Palestinian Legislative Council, Non-SDN Iranian Sanctions, and Non-SDN Menu-Based Sanctions lists administered by the U.S. Treasury Departments Office of Foreign Assets Control (OFAC) or in any Executive Order issued by the President of the United States and administered by OFAC (OFAC Lists), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, (iii) a person or entity named on the Denied Persons, Entity, Military End User, Military Intelligence End User, or Unverified Lists of the Bureau of Industry and Security, or on the Debarred Parties or Nonproliferation Sanctions Lists of the U.S. State Department, (iv) a person or entity for which dealings transactions are prohibited under any non-U.S. sanctions laws, including those promulgated by the European Union and the UN Security Council, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Neither the Subscriber nor any person acting on its behalf has unlawfully exported, re-exported, transferred or brokered the sale of any goods, services, technology or technical data to or from, or entered into, or facilitated any transaction or had any dealing with, any person or entity for whom a license or other authorization is required under any applicable sanctions laws except pursuant to a valid license or other authorization. The Subscriber maintains policies and procedures reasonably designed to ensure compliance with applicable sanctions programs, including the OFAC Lists. The Subscriber is not currently undergoing any audit, review, inspection, investigation, survey or examination by any government law enforcement agency relating to sanctions or other trade-related activity.
(o) The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the BSA/PATRIOT Act), the Subscriber maintains
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policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Subscriber maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were legally derived.
(p) The Subscriber does not have, as of the date hereof, any put equivalent position as such term is defined in Rule 16a-1 under the Exchange Act, any short sales as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, or any type of direct or indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps or similar arrangements (including on a total return basis), and/or other short sale positions, whether through a broker dealer or otherwise, with respect to the securities of the Company. Notwithstanding the foregoing, if (i) other entities under common management with the Subscriber have no knowledge of this Subscription Agreement or of the Subscribers participation in the Transaction (including the Subscribers affiliates) or (ii) the Subscriber is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Subscribers assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of the Subscribers assets, then, in each case, the foregoing representation shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement.
(q) If the Subscriber is, or is acting on behalf of or using the assets of, (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code, (iii) a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other employee benefit plan that is not subject to Title I of ERISA or Section 4975 of the Code but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (Similar Law), or (iv) an entity whose underlying assets are considered to include plan assets of any such plan, account or arrangement described in the foregoing clauses (i), (ii) or (iii) (each such plan, account, arrangement or entity described in the foregoing clauses (i), (ii), (iii) or (iv), a Plan), the Subscriber represents and warrants that: (A) neither the Company, the Target nor any of their respective affiliates, agents or employees (the Transaction Parties) has acted as the Plans fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plans fiduciary or otherwise with respect to any decision to acquire, continue to hold or transfer the Shares; (B) the decision to acquire and hold the Shares is made by a named fiduciary of the Plan who is authorized to invest the assets of the Plan (the Fiduciary); (C) the Fiduciary (x) has determined that an investment in the Shares is consistent with the Fiduciarys responsibilities to the Plan under ERISA or other applicable law and (y) is qualified to make such investment decision; (D) none of the Transaction Parties (x) exercises any authority or control with respect to the management or disposition of assets of the Plan used to purchase the Shares, (y) renders investment advice for a fee with respect to such assets of the Plan, or has the authority to do so, or (z) is an employer maintaining or contributing to, or any of whose employees are covered by,
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the Plan; and (E) the representations and warranties made on Exhibit B hereto (Benefit Plan Investor Questionnaire) are true and complete.
(r) At the Closing, the Subscriber will have sufficient funds to pay the Purchase Price pursuant to Section 2(b) above.
(s) The Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of material non-public information relating to the Company.
(t) No disclosure or offering document has been prepared by the Placement Agents in connection with the offer and sale of the Shares. The Placement Agents and each of their members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by or on behalf of the Company or the Target. In connection with the offer and sale of the Shares, the Placement Agents have not acted as the Subscribers financial advisor or fiduciary.
(u) The Subscriber acknowledges and is aware that SVB Leerink and Credit Suisse are acting as financial advisors and capital markets advisors to Target in connection with the Transaction and the Subscriber hereby waives any claims it may have based on any actual or potential conflict of interest or similar claim relating to or arising from SVB Leerink and Credit Suisse acting as financial advisors and capital markets advisors to Target and acting as placement agents to the Company.
(v) If applicable, in connection with the Transaction, the Subscriber shall comply promptly but in no event later than ten (10) business days after the date hereof with all applicable requirements pursuant to Antitrust Laws (as defined below). Antitrust Laws means all laws, rules and regulations that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade, including the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. If applicable, Subscriber shall use its reasonable best efforts to furnish to the Company, as promptly as reasonably practicable, all information required for any notification or filing to be made pursuant to Antitrust Laws in connection with the Transaction. If applicable, Subscriber shall request early termination of all applicable waiting periods under Antitrust Laws with respect to the Transaction and shall use its reasonable best efforts to, as promptly as practicable, (i) cooperate in good faith with the relevant authorities; (ii) substantially comply with any information or document requests; and (iii) obtain the termination or expiration of all waiting periods under Antitrust Laws, in each case, in connection with the Transaction.
6. Registration Rights.
(a) The Company agrees that, within thirty (30) calendar days after the Transaction Closing (the Filing Date), the Company will file with the SEC (at the Companys sole cost and expense) a registration statement registering the resale of the Shares (the initial registration statement and any other registration statement that may be filed by the Company under this Section 6, the Registration Statement), and the Company shall use its commercially reasonable
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efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof but no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the SEC notifies the Company that it will review the Registration Statement) following the Transaction Closing and (ii) the 10th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be reviewed or will not be subject to further review (such earlier date, the Effectiveness Deadline); provided, that if such day falls on a Saturday, Sunday or other day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next business day on which the SEC is open for business; and provided further, that if the SEC is closed on a business day (whether by reason of government shutdown, government order, health protocol or otherwise), the Effectiveness Deadline shall be extended by the same number of such business days. Notwithstanding the foregoing, if the SEC or its staff prevents the Company from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of shares of Common Stock by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Shares which is equal to the maximum number of Shares as is permitted by the SEC or its staff. In such event, the number of Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional Shares under Rule 415 under the Securities Act, the Company shall amend the Registration Statement or file a new Registration Statement to register such Shares not included in the Registration Statement and cause such amendment or Registration Statement to become effective as promptly as practicable. In no event shall the Subscriber be identified as a statutory underwriter in the Registration Statement unless requested by the SEC; provided that if the SEC requests that Subscriber be identified as a statutory underwriter in the Registration Statement, the Subscriber will have an opportunity to withdraw from the Registration Statement. The Company shall use its commercially reasonable efforts to provide a draft of the Registration Statement to the Subscriber for review at least two (2) Business Days in advance of filing the Registration Statement; provided that, for the avoidance of doubt, in no event shall the Company be required to delay or postpone the filing of such Registration Statement as a result of or in connection with the Subscribers review. The Company agrees that it will use its commercially reasonable efforts to cause such Registration Statement or another registration statement (which may be a shelf registration statement) to remain effective as to the Subscriber until the earliest (such earliest date, the Effectiveness Expiration) of (i) two (2) years from the date of effectiveness of the initial Registration Statement, (ii) the date on which the Subscriber ceases to hold the Shares covered by such Registration Statement, or (iii) the first date on which the Subscriber can sell all of its Shares under Rule 144 of the Securities Act without restriction, including any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable). The Subscriber agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of the Shares to the Company upon request to assist the Company in making the determination described above. The Companys obligations to include the Shares in the Registration Statement are contingent upon the Subscriber furnishing in writing to the Company such information regarding the Subscriber, the securities of the Company beneficially owned by the Subscriber, the intended method of disposition of the Shares, and transactions and relationships with the
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Company, the Target and their respective affiliates as shall be reasonably requested by the Company to effect the registration of the Shares, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, provided that the Subscriber shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Shares. With respect to the information to be provided by the Subscriber pursuant to this Section 6 or otherwise in connection with the Registration Statement, the Company shall request such information from the Subscriber at least ten (10) business days prior to the anticipated filing date of the Registration Statement. Any failure by the Company to file the Registration Statement by the Filing Date or for the Registration Statement to be declared effective by the Effectiveness Deadline shall not otherwise relieve the Company of its obligations to file or effect the Registration Statement as set forth in this Section 6. For purposes of this Section 6, Shares shall mean, as of any date of determination, the Shares and any other equity security of the Company issued or issuable with respect to the Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise.
(b) In the case of the registration, qualification, exemption or compliance effected by the Company pursuant to this Subscription Agreement, the Company shall, upon reasonable request, inform the Subscriber as to the status of such registration, qualification, exemption and compliance. At its expense, the Company shall:
(i) | except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Company determines to obtain, continuously effective with respect to the Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions; |
(ii) | advise the Subscriber within two (2) business days: |
(1) | when a Registration Statement or any post-effective amendment thereto has become effective; |
(2) | of any request by the SEC for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information; |
(3) | of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose; |
(4) | of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares included therein for sale |
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in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and |
(5) | subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus included therein so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading. |
Notwithstanding anything to the contrary set forth herein, the Company shall not, when so advising the Subscriber of such events listed above, provide the Subscriber with any material, nonpublic information regarding the Company other than to the extent that providing notice to the Subscriber of the occurrence of the events listed in (1) through (5) above constitutes material, nonpublic information regarding the Company;
(iii) | use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable; |
(iv) | upon the occurrence of any event contemplated above, except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Company shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; |
(v) | use its commercially reasonable efforts to cause all Shares to be listed on each securities exchange or market, if any, on which the Common Stock is then listed; |
(vi) | use its commercially reasonable efforts (A) to take all other steps necessary to effect and maintain the registration of the Shares contemplated hereby and (B) until the Effectiveness Expiration, to timely file all reports and other materials required to be filed by the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other materials is required for the applicable provisions of Rule 144 to enable the Subscriber to sell the Shares under Rule 144; and |
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(vii) | upon request of the Subscriber, use commercially reasonable efforts to promptly cause the removal of any restrictive legends on the Shares and issue a certificate or a book entry record without any such legends to the holder of the Shares if (A) such Shares are registered for resale pursuant to an effective registration statement under the Securities Act, upon the sale thereof, (B) the Shares are sold pursuant to Rule 144, or (C) the Shares can be sold, assigned or transferred without restriction or current public information requirements pursuant to Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and any requirement for the Company to be in compliance with the current public information required under Rule 144(c) or Rule 144(i), as applicable, and in each case, the holder provides the Company with an undertaking to effect any sales or other transfers in accordance with the Securities Act. |
With respect to a sale pursuant to the foregoing clause (vii)(B), the Company shall use its commercially reasonable efforts to cause the removal of such legend within three (3) business days of receipt of the Subscribers request, provided that the Subscriber has provided customary representations and other documentation in connection therewith. The Company shall be responsible for the fees of the applicable transfer agent and counsel to the Company and the Subscriber shall be responsible for all other fees and expenses (including, without limitation, any applicable broker fees, fees and disbursements of their legal counsel and any applicable transfer taxes). The Company shall use its commercially reasonable efforts at its own expense to cause its legal counsel to deliver an opinion, if necessary, to the applicable transfer agent in connection with the instruction under Section 6(b)(vii) to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act, in each case upon the receipt of customary representations and other documentation, if any, from the Subscriber as reasonably requested by the Company, its counsel or the applicable transfer agent, establishing that restrictive legends are no longer required.
(c) The Company may delay filing or suspend the use of any such registration statement if the Company determines, upon advice of legal counsel, that in order for the registration statement to not contain a material misstatement or omission, an amendment thereto or a supplement to the related prospectus would be needed, or if the Chief Executive Officer of the Company reasonable believes, upon advice of legal counsel, that such filing or use could materially affect a bona fide business or financing transaction of the Company or would require premature disclosure of information that could materially adversely affect the Company (each such circumstance, a Suspension Event); provided, however, that the Company may not delay filing or suspend the use of any registration statement on more than three occasions or for more than ninety (90) consecutive calendar days, or more than one hundred twenty (120) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the Company of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading, the Subscriber agrees that it will (i) immediately discontinue offers and sales of the Shares under the
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Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the Subscriber receives (A) (x) copies of a supplemental or amended prospectus that corrects the misstatement(s) or omission(s) referred to above (which the Company agrees to promptly prepare and deliver) and (y) notice that any post-effective amendment has become effective or (B) notice from the Company that it may resume such offers and sales, and (ii) maintain the confidentiality of any information included in such written notice delivered by the Company unless otherwise required by applicable law. If so directed by the Company, the Subscriber will deliver to the Company or, in the Subscribers sole discretion destroy, all copies of the prospectus covering the Shares in the Subscribers possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Shares shall not apply to (i) the extent the Subscriber is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide pre-existing document retention policy or (ii) copies stored electronically on archival servers as a result of automatic data back-up.
(d) The Company shall indemnify, defend and hold harmless the Subscriber (to the extent a seller under the Registration Statement), its officers, directors, general partners, managing members, managers, employees and agents, and each person who controls the Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including reasonable and documented out-of-pocket attorneys fees) and expenses (collectively, Losses), resulting from (i) any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (ii) any violation by the Company of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Section 6, except to the extent, and only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information furnished in writing to the Company by or on behalf of the Subscriber expressly for use therein. Notwithstanding the forgoing, the Companys indemnification obligations shall not apply to amounts paid in settlement of any Losses or action, suit, claim or other proceeding if such settlement is effected without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed).
(e) The Subscriber shall, separately and not jointly with any Other Subscriber, indemnify, defend and hold harmless the Company, its directors, officers, employees and agents, and each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, general partners, managing members, managers, officers, agents and employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, resulting from any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or any omission or alleged
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omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or any amendment or supplement thereto, in the light of the circumstances under which they were made) not misleading to the extent, and only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information furnished in writing to the Company by or on behalf of the Subscriber expressly for use therein. Notwithstanding the forgoing, the Subscribers indemnification obligations shall not apply to amounts paid in settlement of any Losses or action, suit, claim or other proceeding if such settlement is effected without the prior written consent of the Subscriber (which consent shall not be unreasonably withheld or delayed). In no event shall the liability of the Subscriber be greater in amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Shares giving rise to such indemnification obligation.
(f) Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it may seek indemnification hereunder (provided that the failure to give prompt notice shall not impair any persons right to indemnification hereunder except to the extent such failure has prejudiced the indemnifying party) and (ii) unless in such indemnified partys 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 (which consent shall not be unreasonably withheld, conditioned or delayed). If such defense is assumed, the indemnifying party shall not be liable for any settlement made by the indemnified party without the prior written consent of the indemnifying party. An indemnifying party who 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, except to the extent that in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists 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.
(g) If the indemnification provided under this Section 6 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. 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 on behalf of, or relates to information supplied by or on behalf of, such indemnifying party or indemnified party, and the indemnifying partys and indemnified partys relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses
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referred to above shall be subject to the limitations set forth in this Section 6 and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 6(f) from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying partys obligation to make a contribution pursuant to this Section 6(f) shall be individual, not joint and several, and in no event shall the liability of the Subscriber hereunder exceed the net proceeds received by the Subscriber upon the sale of the Shares giving rise to such indemnification obligation.
7. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of: (a) the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement; (b) such date and time as the Transaction Agreement is terminated in accordance with its terms; or (c) written notice by either party to the other party to terminate this Subscription Agreement if the transactions contemplated by this Subscription Agreement are not consummated on or prior to February 10, 2022 and the terminating partys breach (in the case of termination by the Subscriber, whether alone or together with one or more Other Subscribers breaches of one or more Other Subscription Agreements) was not the primary reason the Closing failed to occur by such date; provided that (i) nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach, and (ii) the provisions of Sections 8 through 10 of this Subscription Agreement will survive any termination of this Subscription Agreement and continue indefinitely. The Company shall notify the Subscriber of the termination of the Transaction Agreement promptly after the termination of such agreement. Upon the termination of this Subscription Agreement in accordance with this Section 7, any monies paid by the Subscriber to the Company in connection herewith shall be promptly (and in any event within one business day after such termination) returned to the Subscriber.
8. Trust Account Waiver. The Subscriber hereby represents and warrants that it has read the Prospectus and understands and acknowledges that the Company has established a trust account (the Trust Account) containing the proceeds of its initial public offering (the IPO) and the overallotment shares acquired by its underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Companys public stockholders (including persons and entities holding overallotment shares acquired by the Companys underwriters, the Public Stockholders), and that, except as otherwise described in the Prospectus, the Company may disburse monies from the Trust Account only: (a) to the Public Stockholders in the event they elect to redeem their Company shares in connection with the consummation of the Companys initial business combination (as such term is used in the Prospectus, the Business Combination) or in connection with an extension of its deadline to consummate a Business Combination, (b) to the Public Stockholders if the Company fails to consummate a Business Combination within 24 months after the closing of the IPO, which is subject to extension by amendment to the Companys organizational documents, (c) with respect to any interest earned on the amounts
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held in the Trust Account, amounts necessary to pay for any franchise and income tax obligations and up to $100,000 in dissolution expenses, or (d) to the Company after or concurrently with the consummation of a Business Combination. For and in consideration of the Company entering into this Subscription Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Subscriber hereby waives any and all right, title and interest, or any claim of any kind it has or may have in the future as a result of, or arising out of, this Subscription Agreement, in or to any monies held in the Trust Account, and agrees not to seek recourse or make or bring any action, suit, claim or other proceeding against the Trust Account as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Shares, regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability. To the extent the Subscriber commences any action, suit, claim or other proceeding based upon, in connection with, as a result of, or arising out of, this Subscription Agreement, the transactions contemplated hereby or the Shares, which action, suit, claim or other proceeding seeks, in whole or in part, monetary relief against the Company or its representatives, the Subscriber hereby acknowledges and agrees that the Subscribers sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit the Subscriber (or any person claiming on its behalf or in lieu of it) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Notwithstanding anything else in this Section 8 to the contrary, nothing herein shall be deemed to limit the Subscribers right, title, interest or claim to the Trust Account by virtue of the Subscribers record or beneficial ownership of Common Stock of the Company acquired by any means other than pursuant to this Subscription Agreement, including but not limited to any redemption right with respect to any such securities of the Company.
9. Miscellaneous.
(a) Neither this Subscription Agreement nor any rights that may accrue to the Subscriber hereunder (other than the Shares acquired hereunder, if any, subject to applicable securities laws) may be transferred or assigned by the Subscriber without the prior written consent of the Company, provided that the Subscriber may transfer or assign all or a portion of its rights and obligations under this Subscription Agreement to an affiliate or to any fund or account managed by the same investment manager as the Subscriber if the transferee or assignee makes all of the representations and warranties contained in Section 5 at the time of the assignment (it being understood that no such transfer or assignment shall relieve the Subscriber of its obligations hereunder if any such transferee or assignee fails to perform such obligations), provided further that the Subscriber shall provide notice to the Company upon such transfer or assignment. Any purported transfer or assignment in violation of this Section 9(a) shall be null and void ab initio.
(b) The Company may request from the Subscriber such additional information as the Company may reasonably deem necessary to evaluate the eligibility of the Subscriber to acquire the Shares and to register the Shares for resale, and Subscriber shall provide such information as may be reasonably requested, provided that the Company agrees to keep any such information provided by the Subscriber confidential unless otherwise required by law, subpoena or regulatory request or requirement.
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(c) The Subscriber acknowledges that the Company, the Placement Agents, the Target and others will rely on the acknowledgments, understandings, agreements, representations and warranties of the Subscriber contained in this Subscription Agreement, provided, however, that the Closing may only be enforced against the Subscriber by the Company. Prior to the Closing, the Subscriber agrees to promptly notify the Company if any of the acknowledgments, understandings, agreements, representations and warranties set forth herein is no longer accurate in any material respect. The Subscriber agrees that the purchase by the Subscriber of the Shares from the Company will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein by the Subscriber as of the time of such purchase. The Subscriber acknowledges and agrees that the Placement Agents are third-party beneficiaries of the acknowledgements, understandings, agreements, representations and warranties of the Subscriber contained in Section 5 of this Subscription Agreement. Except as expressly set forth herein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and assigns.
(d) The Company is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. The Subscriber acknowledges that the Company may file a copy of this Subscription Agreement with the SEC as an exhibit to a periodic report or a registration statement of the Company. Prior to the Transaction Closing, the Subscriber shall not issue any press release or make any other similar public statement with respect to the transactions contemplated hereby without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed).
(e) All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
(f) This Subscription Agreement may not be amended, modified, waived or terminated (other than pursuant to the terms of Section 8 hereof) except by an instrument in writing, signed by the party against whom enforcement of such amendment, modification, waiver or termination is sought. No amendment, modification, termination or waiver signed by the Company and the Subscriber shall require the consent of any third-party beneficiary hereunder, and any and all rights of third-party beneficiaries shall be subject to any and all such amendments, modifications, waivers and termination.
(g) This Subscription Agreement constitutes the entire agreement, and supersedes all other prior and contemporaneous agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.
(h) Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to
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be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
(i) If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
(j) This Subscription Agreement may be executed and delivered in one or more counterparts and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., .pdf or www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
(k) The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement without the posting of any bond and without proof of the inadequacy of money damages, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. In connection with any proceeding for which the Company is being granted an award of money damages, the Subscriber agrees that such damages, to the extent payable by the Subscriber, shall include damages related to the consideration that is or was to be paid to the Company under this Subscription Agreement and such damages are not limited to an award of out-of-pocket fees and expenses related to the Transaction Agreement and this Subscription Agreement.
(l) THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER STATE.
(m) EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES HERETO AGREE THAT ANY SUCH
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CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES HERETO FURTHER AGREE THAT THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY ARE WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS SUBSCRIPTION AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9(m).
(n) THE PARTIES HERETO AGREE THAT ALL DISPUTES, ACTIONS, SUITS AND PROCEEDINGS ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT MUST BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK CITY, NEW YORK, AND ANY APPELLATE COURT THEREFROM (COLLECTIVELY THE DESIGNATED COURTS). EACH PARTY HERETO HEREBY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE DESIGNATED COURTS. NO ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS SUBSCRIPTION AGREEMENT MAY BE BROUGHT IN ANY OTHER FORUM (OTHER THAN TO ENFORCE A JUDGMENT, DECREE OR OTHER ORDER OF A DESIGNATED COURT). EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL CLAIMS OF IMMUNITY FROM JURISDICTION AND ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING IN ANY DESIGNATED COURT, INCLUDING ANY RIGHT TO OBJECT ON THE BASIS THAT ANY DISPUTE, ACTION, SUIT OR PROCEEDING BROUGHT IN THE DESIGNATED COURTS HAS BEEN BROUGHT IN AN IMPROPER OR INCONVENIENT FORUM OR VENUE. EACH OF THE PARTIES HERETO ALSO AGREES THAT DELIVERY OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT TO A PARTY HEREOF IN COMPLIANCE WITH SECTION 9(O) SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING IN A DESIGNATED COURT WITH RESPECT TO ANY MATTERS TO WHICH THE PARTIES HERETO HAVE SUBMITTED TO JURISDICTION AS SET FORTH ABOVE.
(o) All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be
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deemed duly given (i) when delivered personally to the recipient, (ii) when sent by electronic mail, on the date of transmission to such recipient (without an error or similar message that such e-mail was not received by such intended recipient), (iii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), or (iv) three (3) business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and, in each case, addressed to the intended recipient at its address specified on the signature page hereof or to such electronic mail address or address as subsequently modified by written notice given in accordance with this Section 9(o):
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If to the Company, to: Environmental
Impact Acquisition Corp. New York, NY 10022 Attention: Legal Department E-mail: lteipner@cgf.com Telephone No.: (212) 389-8109 |
with copies (which shall not constitute notice) to: Latham & Watkins LLP 10250 Constellation Blvd., Suite 1100 Los Angeles, CA 90067 Attention: Steven B. Stokdyk E-mail: steven.stokdyk@lw.com Telephone No.: (213) 891-7421 | |
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Notice to the Subscriber shall be given to the address underneath the Subscribers name on the signature page hereto.
(p) The headings set forth in this Subscription Agreement are for convenience of reference only and shall not be used in interpreting this Subscription Agreement. In this Subscription Agreement, unless the context otherwise requires: (i) whenever required by the context, any pronoun used in this Subscription Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) including (and with correlative meaning include) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words without limitation; and (iii) the words herein, hereto and hereby and other words of similar import in this Subscription Agreement shall be deemed in each case to refer to this Subscription Agreement as a whole and not to any particular portion of this Subscription Agreement. As used in this Subscription Agreement, the term: (x) business day shall mean any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business (excluding as a result of stay at home, shelter-in-place, non-essential employee or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems, including for wire transfers, of commercially banking institutions in New York, New York are generally open for use by customers on such day); (y) person shall refer to any individual, corporation, partnership, trust, limited liability company or other entity or association, including any governmental or regulatory body, whether acting in an individual, fiduciary or any other capacity; and (z) affiliate shall mean, with respect to any specified person, any other person or group of persons acting together that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such specified person (where the term control (and any correlative terms) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such person,
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whether through the ownership of voting securities, by contract or otherwise). For the avoidance of doubt, any reference in this Subscription Agreement to an affiliate of the Company will include the Companys sponsor, CG Investments Inc. VI.
(q) The obligations of the Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber under any Other Subscription Agreement, and the Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under any Other Subscription Agreement. Nothing contained herein or in any Other Subscription Agreement, and no action taken by the Subscriber or any Other Subscriber pursuant hereto or thereto, shall be deemed to constitute the Subscriber and any Other Subscriber(s) as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Subscriber and any Other Subscriber(s) are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. The Subscriber acknowledges that no Other Subscriber has acted as agent for the Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent for the Subscriber in connection with monitoring its investment in the Shares or enforcing its rights under this Subscription Agreement. The Subscriber shall be entitled to independently protect and enforce its rights, including the rights arising out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber to be joined as an additional party in any proceeding for such purpose.
(r) The Subscriber understands and agrees that the Subscriber is purchasing the Shares directly from the Company. The Subscriber further acknowledges that there have not been, and the Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to the Subscriber by the Company, any other party to the Transaction, any of the foregoing persons representatives or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Company set forth in this Subscription Agreement. The Subscriber acknowledges that certain information provided by the Company was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections.
(s) At Closing, each party hereto shall execute and deliver such additional documents and take such additional actions as the other party may reasonably deem practical and necessary in order to consummate the Offering as contemplated by this Subscription Agreement.
10. Non-Reliance and Exculpation. The Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person other than the statements, representations and warranties contained in this Subscription Agreement in making its investment or decision to invest in the Company. The Subscriber agrees that neither (i) any Other Subscriber pursuant to any Other Subscription Agreement (including the controlling persons, members, officers, directors, partners, agents, or employees of any such Other Subscriber) nor (ii) either Placement Agent, its affiliates or any of its or its affiliates
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respective controlling persons, members, officers, directors, partners, agents, or employees, shall be liable to the Subscriber pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares.
11. Disclosure. The Company shall, by 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement, issue one or more press releases or file with the SEC a Current Report on Form 8-K (collectively, the Press Release) disclosing all material terms of the transactions contemplated hereby and by the Other Subscription Agreements, the Transaction and any other material, nonpublic information that the Company has provided to the Subscriber at any time prior to the filing of the Press Release. Upon the filing of the Press Release, to the Companys knowledge, to the extent the Subscriber received only the Disclosure Documents, the Subscriber shall not be in possession of any material, non-public information received from the Company or any of its officers, directors, employees or agents (including the Placement Agents) and the Subscriber shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral with the Company, the Placement Agents or any of their respective affiliates in connection with the transactions contemplated hereby. Notwithstanding anything in this Subscription Agreement to the contrary, the Company shall not publicly disclose the name of the Subscriber, its investment adviser, if applicable, or any of its affiliates, or include the name of the Subscriber, its investment adviser, if applicable, or any of its affiliates in any press release or in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of the Subscriber, except (i) as required by the federal securities laws and (ii) to the extent such disclosure is required by law, at the request of the Staff of the SEC or regulatory agency or under the regulations of NASDAQ, in which case the Company shall provide the Subscriber with prior written notice of such disclosure permitted under the foregoing clauses (i) and (ii).
12. Placement Agent Matters. Each party hereto agrees for the express benefit of the Placement Agents that:
(a) The Placement Agents (i) have no duties or obligations as placement agents other than those specifically set forth herein or in the engagement letter, dated as of June 4, 2021, among the Company and the Placement Agents, as amended to date (as amended, the Engagement Letter); (ii) shall not be liable for any improper payment made in accordance with the information provided by the Company; (iii) make no representation or warranty, and have no responsibilities, as to the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of the Company pursuant to this Subscription Agreement or in connection with any of the transactions contemplated hereby; and (iv) shall not be liable (x) for any action taken, suffered or omitted by either of them in good faith and reasonably believed to be authorized or within the discretion or rights or powers conferred upon them by this Subscription Agreement or (y) for anything which either of them may do or refrain from doing in connection with this Subscription Agreement, except for such partys own gross negligence, willful misconduct or bad faith.
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(b) The Placement Agents shall be entitled to (i) rely on, and shall be protected in acting upon, any certificate, instrument, opinion, notice, letter or any other document or security delivered to either of them by or on behalf of the Company, and (ii) be indemnified by the Company for acting as placement agents hereunder pursuant the indemnification provisions set forth in the Engagement Letter.
{SIGNATURE PAGES FOLLOW}
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IN WITNESS WHEREOF, the parties hereto have caused this Subscription Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Environmental Impact Acquisition Corp.
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By: |
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Name: | ||
Title: |
SUBSCRIBER |
Name(s) of Subscriber: |
Signature of Authorized Signatory of Subscriber: |
Name of Authorized Signatory: |
Title of Authorized Signatory: |
Address for Notice to Subscriber: |
Attention: |
Email: |
Facsimile No.: |
Telephone No.: |
Address for Delivery of Shares to Subscriber (if not same as address for notice): |
Subscription Amount: |
$_______________ | |||
Number of Shares: |
_______________ | |||
EIN: |
_______________ |
[Subscriber Signature Page to the Subscription Agreement]
Exhibit A
Accredited Investor Questionnaire
Capitalized terms used and not defined in this Exhibit A shall have the meanings given in the Subscription Agreement to which this Exhibit A is attached. The undersigned represents and warrants that the undersigned is an accredited investor (an Accredited Investor) as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the U.S. Securities Act of 1933, as amended (the Securities Act), for one or more of the reasons specified below (please check all that apply):
_______ | A bank as defined in Section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity; | |
_______ | A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the Exchange Act); | |
_______ | An investment adviser registered pursuant to Section 203 of the Investment Advisers Act of 1940, as amended (the Investment Advisers Act), or registered pursuant to the laws of a state, or an investment adviser relying on the exemption from registering with the SEC under Section 203(l) or (m) of the Investment Advisers Act; | |
_______ | An insurance company as defined in Section 2(a)(13) of the Securities Act; | |
_______ | An investment company registered under the Investment Company Act of 1940, as amended, or a business development company as defined in Section 2(a)(48) of that act; | |
_______ | A Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; | |
_______ | A Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; | |
_______ | A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; | |
_______ | An employee benefit plan within the meaning of ERISA, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; |
_______ | A private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; | |
_______ | An organization described in Section 501(c)(3) of the Internal Revenue Code, or a corporation, Massachusetts or similar business trust, partnership, or limited liability company, not formed for the specific purpose of acquiring the Shares, with total assets in excess of $5,000,000; | |
_______ | A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Shares, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of investing in the Company; | |
_______ | An entity in which all of the equity owners qualify as an accredited investor under any of the above subparagraphs. | |
_______ | The Subscriber does not qualify under any of the investor categories set forth above. |
Type of the Subscriber. Indicate the form of entity of the Subscriber:
☐ | Corporation | ☐ | Limited Partnership | |||||
☐ | Limited Liability Company | ☐ | General Partnership | |||||
☐ | Revocable Trust | |||||||
☐ | Other Type of Trust (indicate type): | _________________________ | ||||||
☐ | Other (indicate form of organization): | _________________________ |
Indicate the approximate date the Subscriber entity was formed: _____________________.
Initial the line below which correctly describes the application of the following statement to the Subscribers situation: the Subscriber (x) was not organized or reorganized for the specific purpose of acquiring the Shares and (y) has made investments prior to the date hereof, and each beneficial owner thereof has and will share in the investment in proportion to his or her ownership interest in the Subscriber.
__________ True
__________ False
If the False line is initialed, each person participating in the entity will be required to fill out a Subscription Agreement.
SUBSCRIBER
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Name(s) of Subscriber: ____________________
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Signature of Authorized Signatory of Subscriber: |
Name of Authorized Signatory: |
Title of Authorized Signatory:
|
Address for Notice to Subscriber: |
Attention: |
Email: |
Facsimile No.: |
Telephone No.: |
[Signature Page to Exhibit A of the Subscription Agreement]
Exhibit B
Benefit Plan Investor Questionnaire
Capitalized terms used and not defined in this Exhibit B shall have the meanings given in the Subscription Agreement to which this Exhibit B is attached. The undersigned represents and warrants as follows (please check all boxes that apply):
☐ | The Subscriber is not and will not be, and is not acting on behalf of or using the assets of, an entity or any other person that is or will be a Benefit Plan Investor (as defined below). |
☐ | The Subscriber is, or is acting on behalf of or using the assets of, a Benefit Plan Investor. |
☐ | The Subscriber is, or is acting on behalf of or using the assets of, an employee benefit plan that is not subject to ERISA or Section 4975 of the Code but is subject to any Similar Law. |
If the Subscriber is, or is acting on behalf of or using the assets of, a Benefit Plan Investor, it is so because it is (check appropriate box):
☐ | an employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of Part 4 of Subtitle B of Title I of ERISA. |
☐ | a plan, account or arrangement to which Section 4975 of the Code applies. |
☐ | an entity (other than an insurance company general account) the assets of which are treated as plan assets for purposes of ERISA or Section 4975 of the Code; and |
the percentage of the assets of such entity which are or may become plan assets for purposes of ERISA or Section 4975 of the Code will not exceed _____%.
☐ | an insurance company general account, some or all of the assets of which are considered plan assets for purposes of ERISA or Section 4975 of the Code; and |
the percentage of the assets of such insurance company general account which are or may become plan assets for purposes of ERISA or Section 4975 of the Code will not exceed _____%.
The term Benefit Plan Investor is defined in the U.S. Department of Labor Regulation Section 2510.3-101(f)(2) (as modified by Section 3(42) of ERISA) to include: (i) employee benefit plans subject to Part 4 of Title I of ERISA, (ii) plans, individual retirement accounts, annuities and other plans subject to Section 4975 of the Code and (iii) investment funds and other entities whose assets are deemed to include plan assets (because 25% or more of any one or more classes of equity interests in such fund or entity is held by Benefit Plan Investors, or otherwise).
If, at any time, any of the representations set forth in this Exhibit B (including, without limitation, the percentages set forth above) is or is reasonably expected to become untrue, inaccurate or incomplete, then, without limiting any other remedies available to the Company, the Target or any of their respective affiliates, the Subscriber shall so inform the Company in writing and provide any necessary information promptly. The Subscriber further agrees to provide such other information as the Company may reasonably request from time to time in order to ensure compliance with ERISA, Section 4975 of the Code or any Similar Law, as applicable.
SUBSC RIBER
Name(s) of Subscriber: _____________
Signature of Authorized Signatory of Subscriber:
Name of Authorized Signatory: Title of Authorized Signatory:
Address for Notice to Subscriber:
Attention:
Email:
Facsimile No.:
Telephone No.: |
[Signature Page to Exhibit B of the Subscription Agreement]
Exhibit 10.3
Investor Rights Agreement
This Investor Rights Agreement (this Agreement), dated as of August 9, 2021, is among Environmental Impact Acquisition Corp., a Delaware corporation (the Company), and the other parties hereto identified as a Holder on the signature pages and Schedule A hereto (each, a Holder and collectively, the Holders). Capitalized terms used but not defined herein have the meanings assigned to them in the Business Combination Agreement dated as of the date hereof (the Business Combination Agreement), among the Company, Honey Bee Merger Sub, Inc., a Delaware corporation (Merger Sub), and GreenLight Biosciences, Inc., a Delaware corporation (GreenLight).
WHEREAS, the Company, Merger Sub and GreenLight are parties to the Business Combination Agreement, pursuant to which, among other things, on the Closing Date (as defined in the Business Combination Agreement), Merger Sub will merge (the Merger) with and into GreenLight, with GreenLight surviving the Merger as a wholly owned subsidiary of the Company, and the Company will change its name to GreenLight Biosciences, Inc.;
WHEREAS, the Company, HB Strategies LLC, a Delaware limited liability company (HB Strategies), CG Investments Inc. VI, a Canadian corporation (the Sponsor), and the Independent Directors (as defined herein, and, together with HB Strategies and the Sponsor, the Original Holders) are parties to a Registration Rights Agreement dated as of January 13, 2021 (the Prior Agreement);
WHEREAS, the Holders designated as New Holders on Schedule A (the New Holders) will receive upon consummation of the Merger shares of the Companys Common Stock on the Closing Date pursuant to the Business Combination Agreement;
WHEREAS, the Company has entered into separate Subscription Agreements (collectively, the Subscription Agreements) dated as of the date hereof with certain investors (the PIPE Investors), pursuant to which the Company has agreed to issue and sell to the PIPE Investors the number of shares of Common Stock set forth in such Subscription Agreements (the PIPE Shares) in exchange for the purchase price set forth therein, on the terms and subject to the conditions set forth therein; and
WHEREAS, contingent upon and effective as of the Effective Time (as defined in the Business Combination Agreement), 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.
NOW, THEREFORE, in consideration of the foregoing, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the following terms and variations thereof have the respective 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 or 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.
Assumed Warrants shall mean the Assumed Warrants (as defined in the Business Combination Agreement).
Block Trade shall mean any non-marketed underwritten offering taking the form of a block trade to a financial institution, qualified institutional buyer (as defined in Rule 144A under the Securities Act) or institutional accredited investor (as defined in Rule 501(a) of Regulation D under the Securities Act), bought deal, over-night deal or similar transaction that does not include road show presentations to potential investors, the issuance of a comfort letter by the Companys auditors, or the issuance of a legal opinion or negative assurance letter by the Companys legal counsel.
Board shall mean the Board of Directors of the Company.
Business Combination shall mean any merger, consolidation, stock exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses, involving the Company.
Business Day shall mean 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 shall mean the Transfer (whether or not by means of a Business Combination), in one transaction or a series of related transactions, to a person or group of affiliated persons of the Companys voting securities if, after such Transfer, such person or group of affiliated persons (i) would hold outstanding securities representing a majority of the voting power of the Company (or the surviving, resulting or acquiring entity or a parent thereof), (ii) would otherwise have the power to control the board of directors (or its nearest equivalent) of the Company (or the surviving, resulting or acquiring entity or a parent thereof) or (iii) would otherwise have the power to direct the operations of the Company (or the surviving, resulting or acquiring entity or a parent thereof).
Commission shall mean the Securities and Exchange Commission.
Common Stock shall mean the Companys Class A common stock, par value $0.0001 per share.
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Company shall have the meaning given in the Preamble.
Demand Registration shall have the meaning given in subsection 2.1.1.
Demand Requesting Holder shall have the meaning given in subsection 2.1.1.
Demanding Holders shall have the meaning given in subsection 2.1.1.
Director Warrants shall mean the warrants issued to the Independent Directors pursuant to the Warrant Grant Agreements dated as of January 13, 2021 between the Company and each of the Independent Directors, which warrants entitle the Independent Directors to purchase an aggregate of 150,000 shares of Common Stock.
Effectiveness Expiration shall have the meaning given in subsection 2.3.1.
Effective Time shall have the meaning set forth in the Business Combination Agreement.
Entity shall have the meaning given in subsection 5.2.5.
Exchange Act shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
Form S-1 shall mean a Registration Statement on Form S-1 or any comparable successor form or forms thereto.
Form S-3 shall mean a Registration Statement on Form S-3 or any comparable successor form or forms thereto.
Founder Shares shall mean the 5,175,000 shares of Class B Common Stock, par value $0.0001 per share, of the Company, outstanding on the date hereof and held by HB Strategies, the Sponsor and the Independent Directors, which shares will convert into 5,175,000 shares of Common Stock at the Effective Time.
HB Strategies shall have the meaning given in the Recitals.
Holders shall have the meaning given in the Preamble.
Holders Majority shall have the meaning given in Section 7.11.
Independent Directors shall mean David Brewster, Deval L. Patrick and Dean Seavers.
Liquidation Event shall mean any of the following that occur following the Effective Time: (i) the acquisition of the Company by another person or entity by means of any transaction or series of related transactions to which the Company is party (including, without limitation, any Business Combination but excluding any sale of stock for capital-raising purposes) other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions
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retain, immediately after such transaction or series of related transactions, as a result of equity securities in the Company held by such holders prior to such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company (or the surviving or resulting entity or a parent thereof); (ii) a sale, lease, transfer, exclusive license or other disposition of all or substantially all of the assets of the Company and its subsidiaries taken as a whole by means of any transaction or series of related transactions, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Company; or (iii) any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary.
Lock-up Shares shall mean (i) any shares of Common Stock issued pursuant to the Merger, (ii) the Rollover Options, the Assumed Warrants and the shares of Common Stock issuable upon exercise thereof, (iii) the Founder Shares and the shares of Common Stock issuable upon conversion thereof, (iv) the Private Placement Warrants, the Sponsor Warrants, the Director Warrants, the Working Capital Warrants and the shares of Common Stock issuable upon exercise thereof and (v) any other equity security of the Company issued or issuable with respect to any of the foregoing by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise. For avoidance of doubt, the Lock-up Shares shall not include (x) any shares of Common Stock acquired in open market transactions, (y) any Public Warrants or any shares of Common Stock issuable upon exercise thereof or (z) any shares of Common Stock acquired pursuant to the Subscription Agreements.
Maximum Number of Securities 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 made in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.
New Holders shall have the meaning given in the Recitals.
New Holders Majority shall have the meaning given in Section 7.11.
New Registration Statement shall have the meaning given in subsection 2.3.4.
Original Holders shall have the meaning given in the Recitals.
Original Holders Majority shall have the meaning given in Section 7.11.
Permitted Transferee shall mean any person or entity to whom Lock-up Shares may be Transferred pursuant to Section 5.2.1 through Section 5.2.10.
Piggyback Registration shall have the meaning given in subsection 2.3.1.
PIPE Investors shall have the meaning given in the Recitals.
PIPE Shares shall have the meaning given in the Recitals.
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Prior Agreement shall have the meaning given in the Recitals.
Private Placement Warrants shall mean the warrants issued to HB Strategies pursuant to the Private Placement Warrants Purchase Agreement dated as of January 13, 2021 between the Company and HB Strategies, which warrants entitle HB Strategies to purchase an aggregate of 2,000,000 shares of Common Stock.
Pro Rata shall have the meaning given in subsection 2.1.4.
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.
Public Warrants shall mean the warrants issued by the Company pursuant to its initial public offering (including pursuant to the exercise of the underwriters over-allotment option), each of which currently entitles the holder thereof to purchase one share of Common Stock at an exercise price of $11.50 per share.
Registrable Security, Registrable Securities shall mean the following securities held by any Holder: (i) any PIPE Shares and any shares of Common Stock issuable pursuant to the Business Combination Agreement, (ii) any shares of Common Stock issued to a Holder (or a Permitted Transferee) on or after the Closing Date upon exercise or conversion of the Founder Shares, the Private Placement Warrants, the Sponsor Warrants, the Director Warrants, the Working Capital Warrants, the Rollover Options or the Assumed Warrants and (iii) any other equity security of the Company issued or issuable with respect to any such shares of Common Stock by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or other similar transaction; provided, however, that, as to any particular Registrable Security, such security shall cease to be a Registrable Security upon the earliest of the following to occur: (A) a Registration Statement with respect to the sale of such security 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 by the applicable Holder; (B) such securities shall have been otherwise transferred, new certificate(s) or notice(s) of book entry for such securities not bearing a legend restricting further transfer shall have been delivered by the Company to the transferee, 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 by the Holder thereof 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, Prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
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Registration Expenses shall mean the documented, out-of-pocket expenses of a Registration or Underwritten Offering incurred by the Company, including, without limitation, the following:
(i) all registration and filing fees (including fees with respect to filings required to be made by any Underwriters, brokers or dealers with the Financial Industry Regulatory Authority, Inc.) and any national securities exchange on which the Common Stock is then listed;
(ii) fees and expenses of compliance with securities or Blue Sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with Blue Sky qualifications of Registrable Securities);
(iii) printing, messenger, telephone and delivery expenses;
(iv) reasonable fees and disbursements of counsel for the Company;
(v) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration or Underwritten Offering; and
(vi) in the case of a Demand Registration, reasonable fees and disbursements of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders initiating such Demand Registration to be registered for offer and sale in the applicable Registration, not to exceed $50,000.
Registration Statement shall mean any registration statement (and any successor thereto) 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.
Requesting Holder shall have the meaning given in subsection 2.3.5.
Resale Shelf Registration Statement shall have the meaning given in subsection 2.3.1.
Rollover Options shall mean the Rollover Options (as defined in the Business Combination Agreement).
SEC Guidance shall have the meaning given in subsection 2.3.4.
Securities Act shall mean the Securities Act of 1933, as amended from time to time.
Selling Holders shall mean any Holder electing to sell any of its Registrable Securities in a Registration.
Sponsor shall have the meaning given in the Recitals.
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Sponsor Warrants shall mean the 600,000 warrants issued to the Sponsor pursuant to the Warrant Subscription Agreement dated as of January 13, 2021 between the Company and the Sponsor, which warrants entitle the Sponsor to purchase an aggregate of 600,000 shares of Common Stock.
Subscription Agreements shall have the meaning given in the Recitals.
Takedown Requesting Holder shall have the meaning given in subsection 2.3.5.
Transfer shall mean to, directly or indirectly (i) sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other agreement, 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 or entity, (ii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the Commission promulgated thereunder with respect to, any such interest, (iii) enter into any swap, short sale, hedge or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any such interest, whether any such transaction is to be settled by delivery of securities, in cash or otherwise, or (iv) make any public announcement of any intention to effect any transaction specified in clause (i), (ii) or (iii).
Underwriter shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealers 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, including for the avoidance of doubt an Underwritten Shelf Takedown.
Underwritten Shelf Takedown shall have the meaning given in subsection 2.3.5.
Working Capital Warrants shall mean warrants having terms equivalent to the Private Placement Warrants and issued on or before the Closing Date to the Sponsor, HB Strategies, an affiliate of the Sponsor or HB Strategies, or a director or officer of the Company upon conversion of loans made to the Company at a conversion price of $1.00 per warrant, which warrants entitle the holders thereof to purchase an aggregate of up to 1,500,000 shares of Common Stock.
ARTICLE II
REGISTRATION
Section 2.1 Demand Registration.
2.1.1 Request for Registration. Subject to the provisions of subsection 2.1.4 and Section 2.4 hereof, at any time and from time to time following the Effective Time (but subject
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to Article IV), Holders holding at least thirty percent (30%) of the then-outstanding number of Registrable Securities held by all Holders (such Holders, as the case may be, the Demanding Holders), may make a written demand for Registration of all or part of their Registrable Securities on Form S-3 (or, if Form S-3 is not available to be used by the Company at such time, on Form S-1 or another appropriate form permitting 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 Companys 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 Holders Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holders 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 use its commercially reasonable efforts to effect, as soon thereafter as practicable, but not more than sixty (60) days immediately after the Companys receipt of the Demand Registration (or ninety (90) days if the Commission or its staff notifies the Company that it will review the Registration Statement), the Registration of all Registrable Securities requested by the Demanding Holders and Demand Requesting Holders pursuant to such Demand Registration; provided that the Company shall not be obligated to effect any Registration under this subsection 2.1.1 if the Demanding Holders and Demand Requesting Holders propose to sell Registrable Securities with a total offering price (including piggyback securities and before deduction of underwriting discounts or commissions) reasonably expected to be less than, in the aggregate, $75,000,000. Under no circumstances shall the Company be obligated to effect more than an aggregate of two (2) Registrations pursuant to a Demand Registration under this subsection 2.1.1.
2.1.2 Effective Registration. Notwithstanding the provisions of subsection 2.1.1 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 in all material respects with all of its obligations under this Agreement with respect thereto; provided, further, however, 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 for purposes of counting Registrations under subsection 2.1.1 above 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; provided, further, however, that the Company shall not be obligated or required to file another Registration Statement until the Registration Statement that has been
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previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or has been terminated.
2.1.3 Underwritten Offering. Subject to the provisions of subsection 2.1.4 and Section 2.4 hereof, if a majority-in-interest of the Demanding Holders 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 Holders participation in such Underwritten Offering and the inclusion of such Holders 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 2.1.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company, such Underwriter(s) to be reasonably acceptable to a majority-in-interest of the Demanding Holders.
2.1.4 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 in writing (which written advice the Company shall make available to the Demanding Holders and the Demand Requesting Holders (if any) upon request) 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.
2.1.5 Demand Registration Withdrawal. In the case of a Demand Registration under subsection 2.1.1, a majority-in-interest of the Demanding Holders and the Demand
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Requesting Holders (if any) 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(s) (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 (or after such Registration Statement has been declared effective and is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or any other governmental agency). In the event of such withdrawal, the Holders exercising such right of withdrawal shall be responsible for the Registration Expenses incurred in connection with such Registration prior to such withdrawal under this subsection 2.1.5, unless the Holders of a majority-in-interest of the then-outstanding number of Registrable Securities held by all Holders forfeit their right to one (1) demand registration pursuant to Section 2.1.
2.1.6 The Company shall not be obligated to effect, or to take any action to effect, any Registration pursuant to Section 2.1.1 during the period that is sixty (60) days before the Companys good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated Registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such Registration Statement to become effective.
Section 2.2 Piggyback Registration.
2.2.1 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 pursuant to Section 2.1 and 2.3 of this Agreement), other than a Registration Statement (i) filed in connection with any equity compensation or other benefit plan, (ii) for an exchange offer, (iii) for an offering of securities solely to the Companys existing stockholders, (iv) for an offering of debt that is convertible into equity securities of the Company, (v) filed on Form S-4 related to any merger, acquisition, business combination or other transaction subject to Rule 145 under the Securities Act (or any successor thereto), (vi) for a dividend reinvestment plan or (vii) any Block Trade, 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(s), 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 commercially reasonable efforts to cause the managing Underwriter(s) of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.2.1 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
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Securities through an Underwritten Offering under this subsection 2.2.1 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company.
2.2.2 Reduction of Piggyback Registration. If the managing Underwriter(s) in an Underwritten Registration that is to be a Piggyback Registration, in good faith, advises the Company in writing (which written advice the Company shall make available to the Holders of Registrable Securities participating in the Piggyback Registration upon request) that the dollar amount or number of shares of Common Stock that the Company desires to sell, taken together with (i) the shares of Common Stock, 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 Section 2.2.1 hereof, and (iii) the shares of Common Stock, 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 Companys 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 2.2.1 hereof, Pro Rata, based on the respective number of Registrable Securities that each Holder has so requested to be included in such Registration, 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 2.2.1, Pro Rata based on the respective number of Registrable Securities that each Holder has so requested to be included in such Registration, 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
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to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.
2.2.3 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, or, if such Piggyback Registration is in connection with an underwritten offering pursuant to an effective shelf registration statement, then prior to the public announcement of such offering. 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 (including after 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 2.2.3.
2.2.4 Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.2 hereof shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.1 hereof.
2.2.5 Right to Terminate Registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.2 at any time whether or not any Holder of Registrable Securities has elected to include securities in such registration (including after effectiveness of such Registration Statement).
Section 2.3 Resale Shelf Registration Rights.
2.3.1 Registration Statement Covering Resale of Registrable Securities. The Company shall use commercially reasonable efforts to prepare and file or cause to be prepared and filed with the Commission, no later than forty-five (45) days following the Closing Date (the Filing Deadline), a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act or any successor thereto registering the resale from time to time by Holders of all of the Registrable Securities held by the Holders (the Resale Shelf Registration Statement). The Resale Shelf Registration Statement shall be on Form S-3 (or, if Form S-3 is not available to be used by the Company at such time, on Form S-1 or another appropriate form permitting Registration of such Registrable Securities for resale). If the Resale Shelf Registration Statement is initially filed on Form S-1 and thereafter the Company becomes and remains eligible to use Form S-3 for secondary sales, the Company shall, as promptly as practicable, cause such 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 on Form S-3. The Company shall use commercially reasonable efforts to cause the Resale Shelf Registration Statement to be declared effective as soon as possible after filing; provided, however, that the Companys obligations to include the Registrable Securities held by a Holder in the Resale Shelf Registration Statement are contingent upon such Holder furnishing in writing to the Company such information regarding the Holder, the securities of the Company
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beneficially owned by the Holder, the intended method of disposition of the Registrable Securities, and transactions and relationships with the Company and its affiliates as shall be reasonably requested by the Company to effect the registration of the Registrable Securities, and the Holder shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations. Once effective, the Company shall use commercially reasonable efforts to keep the Resale Shelf Registration Statement and Prospectus included therein continuously 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 the earliest (such earliest date, the Effectiveness Expiration) of (i) three (3) years from the date of effectiveness of such Registration Statement, (ii) the date on which all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement and (iii) the date on which all Registrable Securities and other securities covered by such Registration Statement have ceased to be Registrable Securities. The Registration Statement filed with the Commission pursuant to this subsection 2.3.1 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 of 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.
2.3.2 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.
2.3.3 Amendments and Supplements. Subject to the provisions of Section 2.3.1 above, the Company shall use commercially reasonable efforts to 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, in each case until the Effectiveness Expiration. If any Resale Shelf Registration Statement filed pursuant to Section 2.3.1 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 commercially reasonable 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
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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 the Effectiveness Expiration; 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.
2.3.4 SEC Cutback. Notwithstanding the registration obligations set forth in this Section 2.3, in the event the Commission or its staff 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 commercially reasonable efforts to file amendments to the Resale Shelf Registration Statement as required by the Commission or its staff and/or (ii) withdraw the Resale Shelf Registration Statement and file a new registration statement (a New Registration Statement) on Form S-3, or if Form S-3 is not then available to the Company for such registration statement, on such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall use its commercially reasonable 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 on the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent 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 to further limit its Registrable Securities to be included on the Registration Statement, 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 or its staff 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 clauses (i) or (ii) above, the Company will use its commercially reasonable 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-3 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.
2.3.5 Underwritten Shelf Takedown. At any time and from time to time after a Resale Shelf Registration Statement on Form S-3 has been declared effective by the Commission and remains effective, the Holders may request to sell all or any portion of the Registrable Securities in an underwritten offering that is registered pursuant to such Resale Shelf Registration Statement (each, an Underwritten Shelf Takedown); provided, however, that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering of the requesting Holders Registrable Securities has a total offering price (including piggyback securities and before deduction of underwriting discounts or commissions) reasonably expected
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to exceed, in the aggregate, $75,000,000. All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company at least twenty (20) days prior to the public announcement of such Underwritten Shelf Takedown, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown and the expected price range (net of underwriting discounts and commissions) of such Underwritten Shelf Takedown. Except in the case of a requested Underwritten Shelf Takedown in the form of a Block Trade, following receipt of a request for an Underwritten Shelf Takedown, the Company shall promptly notify the other Holders of the request and of their right to participate in the Underwritten Shelf Takedown, which shall specify the anticipated public announcement date. The Company shall include in any Underwritten Shelf Takedown the securities requested to be included by any Holder (each a Takedown Requesting Holder) at least four Business Days prior to the anticipated public announcement date of such Underwritten Shelf Takedown set forth in the Company notice pursuant to written contractual piggyback registration rights of such Holder (including those set forth herein). All such Holders proposing to distribute their Registrable Securities through an Underwritten Shelf Takedown under this subsection 2.3.5 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company, such Underwriter(s) to be reasonably acceptable to a majority-in-interest of the Takedown Requesting Holders initiating the Underwritten Shelf Takedown.
2.3.6 Reduction of Underwritten Shelf Takedown. If the managing Underwriter(s) in an Underwritten Shelf Takedown, in good faith, advise(s) the Company in writing (which written advice the Company shall make available to the Takedown Requesting Holders upon request) that the dollar amount or number of Registrable Securities that the Takedown Requesting Holders desire to sell, taken together with all other shares of the Common Stock or other equity securities that the Company desires to sell, exceeds the Maximum Number of Securities, then the Company shall include in such Underwritten Shelf Takedown, as follows: (i) first, the Registrable Securities of the Takedown Requesting Holders, Pro Rata based on the respective number of Registrable Securities that each Takedown Requesting Holder has so requested to be included in such Underwritten Shelf Takedown, that can be sold without exceeding the Maximum Number of Securities; and (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities.
2.3.7 Limit on Underwritten Shelf Takedowns. Registrations effected pursuant to this Section 2.3 shall not be counted as Demand Registrations effected pursuant to Section 2.1. Under no circumstances shall the Company be obligated to effect more than an aggregate of three (3) Underwritten Shelf Takedowns in any 12-month period.
2.3.8 Block Trades. If the Company shall receive a request from a Holder or Holders of Registrable Securities that the Company effect the sale of Registrable Securities with a total offering price (before deduction of underwriting discounts or commissions) reasonably expected to exceed, in the aggregate, $25,000,000 in an Underwritten Shelf Takedown in the form of a Block Trade (which notice shall contain the information required to be disclosed in the relevant Prospectus with respect such Block Trade), then the Company shall use commercially reasonable efforts, as expeditiously as possible, to cooperate and effect the offering of the
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Registrable Securities in such Block Trade, without giving any effect to any required notice periods or delivery of notices to any other Holders. A Holder in the aggregate may demand no more than two (2) Block Trades pursuant to this Section 2.3.8 in any twelve (12) month period. Any offering conducted as a Block Trade will not count as an Underwritten Shelf Takedown for the purposes of Section 2.3.7.
2.3.9 Withdrawal. A majority-in-interest of the Takedown Requesting Holders shall have the right to withdraw from an Underwritten Shelf Takedown (including a Block Trade) for any or no reason whatsoever upon written notification to the Company and the Underwriter(s) (if any) of their intention to withdraw from such Underwritten Shelf Takedown (or Block Trade) before the filing of the applicable red herring prospectus or prospectus supplement used to market such Underwritten Shelf Takedown (or Block Trade). In the event of such withdrawal of an Underwritten Shelf Takedown that is not a Block Trade, the Holders exercising such right of withdrawal shall be responsible for the Registration Expenses incurred in connection with such Registration prior to such withdrawal under this subsection 2.3.8, unless the Holders of a majority-in-interest of the then-outstanding number of Registrable Securities held by all Holders forfeit their right to one (1) Underwritten Shelf Takedown during the succeeding twelve (12) month period. In the event of such withdrawal of a Block Trade, the Holders exercising such right of withdrawal shall be responsible for the Registration Expenses incurred in connection with such Registration prior to such withdrawal under this subsection 2.3.8.
Section 2.4 Restrictions on Registration Rights. Notwithstanding anything to the contrary contained herein, the Company shall not be obligated to (but may, at its sole option) file a Registration Statement pursuant to a Demand Registration request made under Section 2.1 or effectuate any Underwritten Shelf Takedowns (including any Block Trade) pursuant to any request made under Section 2.3 during the period starting with the date sixty (60) days prior to the Companys 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, a Company initiated Registration, provided that the Company continues to actively employ, in good faith, commercially reasonable efforts to cause the applicable Registration Statement to become effective.
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 commercially reasonable 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 use its commercially reasonable efforts, as expeditiously as possible, to:
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 commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
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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 have been sold;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), 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 reasonably 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 commercially reasonable 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 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 necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable 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 which would subject it 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 seller of such Registrable Securities, 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 commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
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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 draft copy thereof to each seller 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 Company reasonable believes the Prospectus included in such Registration Statement, as then in effect, includes a potential Misstatement, and then correct such potential Misstatement as set forth in Section 3.4 hereof;
3.1.11 permit a representative of the Holders selected by a majority-in-interest of the Holders participating in a Registration, the Underwriter(s), if any, and any attorney or accountant retained by such Holders or Underwriter(s) to participate, at each such persons own expense (except as otherwise set forth herein), in the preparation of the Registration Statement, and cause the Companys officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter(s), attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriter(s) 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 in the event of an Underwritten Registration, obtain from the Companys independent registered public accountants a cold comfort letter in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing Underwriter(s) may reasonably request, and reasonably satisfactory to such managing Underwriter(s);
3.1.13 in the event of an Underwritten Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, if requested by the Underwriter(s), if any, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration addressed to the Underwriter(s) covering such legal matters with respect to the Registration in respect of which such opinion and negative assurance letter are being given as are customarily included in such opinions and negative assurance letters;
3.1.14 in the event of any Underwritten Registration, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter(s) 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 Companys first full calendar quarter after the effective date of the Registration
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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 a Registration, including an Underwritten Offering, involves the Registration of Registrable Securities having a total offering price (including piggyback securities and before deduction of underwriting discounts or commissions) reasonably expected to exceed $75,000,000, use its commercially reasonable efforts to make available senior executives of the Company to participate in customary road show presentations that may be reasonably requested by the Underwriter(s) 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. Except as set forth in Section 2.1.5, all Registration Expenses 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 hereunder unless such person (i) agrees to sell such persons 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; provided however, that no party to this Agreement as a condition to participating in an Underwritten Offering may be required to enter into any lock-up or similar agreement with any underwriter for a period of more than 90 days from the date of the pricing of the Underwritten Offering.
Section 3.4 Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that it reasonably believes that a Registration Statement or Prospectus contains a potential 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 potential Misstatement or until he, she, or it is advised in writing by the Company that the use of the Prospectus may be resumed, provided that the Company agrees to use its commercially reasonable efforts to prepare and file any required supplement or amendment correcting any Misstatement promptly after the time of such notice and, if necessary, to request the immediate effectiveness thereof. If the filing, initial effectiveness or continued use of a Registration Statement or Prospectus included in any Registration Statement at any time (i) would require the Company to make an Adverse Disclosure, (ii) would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Companys control, or (iii) in the good faith judgment of the Board, would be materially detrimental to the Company, the Company shall have the right to defer the filing, initial effectiveness or continued use of each Registration Statement and each Prospectus
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included in any Registration Statement pursuant to clause (i), (ii) or (iii), provided, however, that the Company shall not defer any such filing, initial effectiveness or use of a Registration Statement or Prospectus included in any Registration Statement pursuant to this Section 3.4 on more than three occasions or for more than ninety (90) consecutive calendar days, or more than one hundred twenty (120) total calendar days, in each case during any twelve-month period. 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.
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, agrees to use its commercially reasonable efforts 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 date hereof 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 in electronic form upon request. The Company further agrees to use its commercially reasonable efforts to 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 shares of Common Stock 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 customary legal opinions as reasonably requested. 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. Other than the registration rights granted to the purchasers under the Subscription Agreements, 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. In the event of any conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail. Notwithstanding anything herein to the contrary, the Sponsor and any transferee that is an underwriter and related party (as defined in FINRA Rule 5110 and 5121) in connection with the initial public offering of the Company (i) may not exercise its rights under Section 2.1 and 2.2 hereunder after five (5) and seven (7) years, respectively, after the effective date of the registration statement relating to the Companys initial public offering and (ii) may not exercise its rights under Section 2.1 more than one time.
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 directors, general partners, managing members, managers, officers, agents and employees and each person who controls (within the meaning of the Securities Act) such Holder against all losses, claims, damages and liabilities and expenses (including reasonable and documented out-of-pocket attorneys fees) caused by any untrue or
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alleged untrue statement of a 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 (in the case of any Prospectus, preliminary prospectus or amendment or supplement thereto, in the light of the circumstances under which they were made) not misleading, except insofar as the same are caused by or contained in or omitted from any information furnished in writing to the Company by or on behalf of such Holder expressly for use therein. In the underwriting agreement for any Underwritten Offering, the Company shall indemnify the Underwriter(s), their officers and directors and each person who controls (within the meaning of the Securities Act) such Underwriter(s) on customary terms and conditions.
4.1.2 In connection with any Registration Statement or Prospectus 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, officers, agents and employees and each person who controls (within the meaning of the Securities Act) the Company against any losses, claims, damages, liabilities and expenses (including without limitation reasonable and documented out-of-pocket attorneys fees) caused by any untrue statement or alleged untrue statement of a material fact contained in the 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 (in the case of any Prospectus, preliminary prospectus or amendment or supplement thereto, in the light of the circumstances under which they were made) not misleading, but only to the extent that such untrue or alleged untrue statement or omission or alleged omission is contained in or omitted from any information or affidavit so furnished in writing by or on behalf of 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 limited to the net proceeds actually received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. In the underwriting agreement for any Underwritten Offering, the Holders of Registrable Securities participating in such Underwritten Offering shall indemnify the Underwriter(s), their officers and directors and each person who controls (within the meaning of the Securities Act) such Underwriter(s) on customary terms and conditions.
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 may seek indemnification (provided, however, that the failure to give prompt notice shall not impair any persons right to indemnification hereunder except to the extent such failure has materially prejudiced the indemnifying party) and (ii) unless in such indemnified partys 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 the indemnifying party assumes the defense of any claim, the indemnifying party shall not be obligated to pay any fees or expenses thereafter incurred by the indemnified party with respect to such claim. 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
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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. The indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without the prior written consent of the indemnifying party (but such consent shall not be unreasonably withheld, conditioned or delayed). No indemnifying party shall, without the prior written consent of the indemnified party (but such consent shall not be unreasonably withheld, conditioned or delayed), 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 securities.
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 which are expressly indemnifiable pursuant to the terms of Section 4.1, 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 partys and indemnified partys 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 actually 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 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. In the underwriting agreement for any Underwritten Offering, the Company and the Holders of Registrable Securities participating in such Underwritten Offering shall provide for contribution on customary terms and conditions to any losses, claims, damages, liabilities and expenses incurred by the Underwriter(s), their officers and directors and each person who controls (within the meaning of the Securities Act) such Underwriter(s).
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4.1.6 Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in any underwriting agreement entered into in connection with an Underwritten Offering conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.
ARTICLE V
LOCK-UP
Section 5.1 Lock-Up. Except as permitted by Section 5.2 and pursuant to Section 5.3, each Holder shall not Transfer any Lock-up Shares beneficially owned or owned of record by such Holder until the close of business on the date that is 180 days from the Closing Date (the Lock-up Period).
Section 5.2 Exceptions. The provisions of Section 5.1 shall not apply to:
5.2.1 Transfers pursuant to a qualified domestic relations order, court order or in connection with a divorce settlement;
5.2.2 Transfers as a bona fide gift or charitable contribution;
5.2.3 Transfers to a trust, family limited partnership or other entity formed primarily 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 and Transfers to any such family member;
5.2.4 Transfers by will or intestate succession upon the death of the Holder (it being understood and agreed that the appointment of one or more executors, administrators or personal representatives of the estate of a Holder shall not be deemed a Transfer hereunder to the extent that such executors, administrators and/or personal representatives comply with the terms of this Article V on behalf of such estate);
5.2.5 if the Holder is a corporation, partnership (whether general, limited or otherwise), limited liability company, trust or other business entity (each, an Entity), (i) Transfers to another Entity that controls, is controlled by or is under common control or management with the Holder, or (ii) dividends, distributions or other dispositions to direct or indirect stockholders, partners, limited liability company members or other equity holders of the Holder, including, for the avoidance of doubt, where the Holder is a partnership, to its general partner or a successor partnership, fund or investment vehicle, or any other partnerships, funds or investment vehicles controlled or managed by such partnership;
5.2.6 if the Holder is a trust, Transfers to a trustor or beneficiary of such trust or to the estate of a beneficiary of such trust;
5.2.7 Transfers to the Companys officers, directors or their affiliates;
5.2.8 Transfers to any other Holder or the direct or indirect stockholders, partners, limited liability company members or other equity holders of a Holder, any affiliates of
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any Holder or any related partnerships, funds or investment vehicles controlled or managed by such persons or entities;
5.2.9 pledges or postings of Lock-up Shares as security or collateral in connection with any borrowing or the incurrence of any indebtedness by any Holder; provided, however, that such borrowing or incurrence of indebtedness is secured by a portfolio of assets or equity interests issued by multiple issuers (it being understood and agreed that the Permitted Transferees written agreement to be bound by the provisions of this Agreement with respect to the Lock-up Shares Transferred to such Permitted Transferee need not take effect until the Permitted Transferee takes possession of the Lock-up Shares as a result of a foreclosure, margin call or similar disposition);
5.2.10 Transfers to a nominee or custodian of a person or Entity to whom a Transfer would be permissible under Sections 5.2.2 through 5.2.9;
5.2.11 Transfers pursuant to a bona fide third-party merger, consolidation, stock exchange, asset acquisition, stock purchase, recapitalization, other business combination or other transaction or series of related transactions involving a Change in Control of the Company; provided, however, that in the event that such merger, consolidation, stock exchange, asset acquisition, stock purchase, recapitalization, other business combination or other transaction is not completed, the Lock-up Shares subject to this Article V shall remain subject to this Article V;
5.2.12 Transfers to the Company (including without limitation Transfers to the Company to pay the exercise price of any option or warrant or to satisfy any tax withholding obligations in connection with the exercise of any option or warrant or the vesting of any stock-based awards) or in connection with the liquidation or dissolution of the Company;
5.2.13 the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act; provided, however, that such plan does not provide for the Transfer of any Lock-up Shares during the Lock-Up Period; for the avoidance of doubt, any Lock-up Shares subject to any such plan shall continue to be subject to the restrictions on Transfer set forth in this Article V; or
5.2.14 Transfers to generate proceeds (on an after-tax basis) to pay the exercise price of, and/or satisfy tax withholding obligations in connection with, the exercise of options to purchase shares of Common Stock expiring within the Lock-up Period (including without limitation a broker-assisted cashless exercise involving a market sale);
provided, however, that in the case of any Transfer pursuant to Sections 5.2.2 through 5.2.10, each Permitted Transferee shall have first executed and delivered to the Company a written agreement, in form and substance reasonably satisfactory to the Company, to be bound by the provisions of this Article V with respect to the Lock-up Shares Transferred to such Permitted Transferee. Notwithstanding the provisions set forth in Section 5.1 or Section 5.2 above, nothing in this Article V or any other provision of this Agreement shall restrict or prohibit Transfers by HB Strategies of any securities of the Company other than the Lock-Up Shares, including any
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securities acquired in the Companys initial public offering, in open market purchases, privately negotiated transaction, or otherwise.
Section 5.3 Release of Lock-Up Restrictions. The Lock-up Period shall end on the earlier of (A) the period set forth in Section 5.1 and (B) the date that the last sale price of the Common Stock equals or exceeds $15.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 120 days after the Effective Time, or (y) the date on which the Company completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the Companys stockholders having the right to exchange their shares of Common Stock for cash, securities or other property. Notwithstanding the other provisions set forth herein, the Board may, in its sole discretion, determine to waive, amend, or repeal the restrictions set forth in Section 5.1 above, whether in whole or in part, provided that any such waiver, amendment or repeal shall (i) not make such restrictions more restrictive or apply for a longer period of time and (ii) require the unanimous approval of the directors present at any duly called meeting of the Board at which a quorum is present.
ARTICLE VI
TERMINATION
Section 6.1 Termination. This Agreement shall terminate upon the earliest to occur of: (i) the termination of the Business Combination Agreement in accordance with its terms, (ii) the date on which neither the Holders nor any of their permitted assignees holds any Registrable Securities, (iii) a Liquidation Event and (iv) the fifth (5th) anniversary of the Effective Time.
Section 6.2 Effect of Business Combination Termination. In the event of a termination of this Agreement as a result of the termination of the Business Combination Agreement, this Agreement shall become void and the Prior Agreement shall continue in full force and effect.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Effectiveness of this Agreement; Termination of Prior Agreement. Upon execution and delivery of this Agreement, only Article VI and this Article VII shall become effective. The remainder of this Agreement shall only become effective at the Effective Time and prior to such date shall be of no force or effect. Pursuant to Section 5.6 of the Prior Agreement, the undersigned parties who are parties to the Prior Agreement hereby terminate the Prior Agreement effective at the Effective Time, with the intent and effect that the Prior Agreement shall be replaced and superseded in its entirety by this Agreement effective at the Effective Time. The undersigned parties who are parties to the Prior Agreement hereby agree that, until the Effective Time, no term, provision or condition of the Prior Agreement shall be amended, modified, supplemented or waived without the prior written consent of GreenLight.
Section 7.2 Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) when
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sent by electronic mail, on the date of transmission to such recipient (without an error or similar message that such e-mail was not received by such intended recipient), (iii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid), or (iv) three (3) business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and, in each case, addressed to the intended recipient at 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 7.2):
If to the Company prior to the Effective Time, to it at:
Environmental Impact Acquisition Corp.
535 Madison Avenue
New York, NY 10022
Attention: Legal Department
E-mail: lteipner@cgf.com
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, CA 90067
Attention: Steven B. Stokdyk
E-mail: steven.stokdyk@lw.com
If to the Company prior to the Effective Time or to GreenLight at any time, to it at:
GreenLight Biosciences, Inc.
200 Boston Avenue, Suite 3100
Medford, MA 02155
Attention: General Counsel
Email: notices@greenlightbio.com
with a copy (which shall not constitute notice) to:
Foley Hoag LLP
155 Seaport Blvd.
Boston, MA 02210
Attention: David A. Broadwin and John D. Hancock
E-mail: dab@foleyhoag.com; jdh@foleyhoag.com
and with a copy (which shall not constitute notice) to:
Foley Hoag LLP
1301 Avenue of the Americas, 25th Floor.
New York, NY 10019
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Attention: Adrienne Ellman
E-mail: aellman@foleyhoag.com
If to a Holder, to the address or email address set forth for such Holder on its signature page hereof.
Section 7.3 Severability. If any term, condition or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, 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, condition 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 may be consummated as originally contemplated to the fullest extent possible.
Section 7.4 Entire Agreement; Assignment; Joinder. Subject to the provisions of Section 7.1, 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; provided, however, that this Agreement does not supersede the Fifth Amended and Restated Investors Rights Agreement dated as of June 15, 2020 by and among GreenLight and the investors party thereto (such investors, the GreenLight Investors), which is expected to remain in effect until the Effective Time. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise) by any party without the prior written consent of the Company (and, until the Effective Time, GreenLight), except that a Holder may, without any such consent, assign such Holders rights under this Agreement to any Permitted Transferee by delivering to the Company (and, until the Effective Time, GreenLight) a written agreement executed and delivered by such Permitted Transferee, in form and substance reasonably satisfactory to the Company (and, until the Effective Time, GreenLight), to be bound by the provisions of this Agreement, whereupon such Permitted Transferee shall be a Holder hereunder. Each GreenLight Investor shall be entitled to become a party to this Agreement by executing and delivering to the Company a counterpart signature page hereto, whereupon such GreenLight Investor shall be a Holder hereunder.
Section 7.5 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto (and its successors and permitted assigns), and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that each GreenLight Investor who is not a party hereto shall be a third-party beneficiary of the last sentence of Section 7.4.
Section 7.6 Governing Law; Exclusive Forum. This Agreement shall be governed by, and construed and enforced 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 the
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Delaware Chancery Court; provided, however, 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) 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 (ii) 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 order 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, any claim that (A) it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (B) 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) (1) the action in any such court is brought in an inconvenient forum, (2) the venue of such action is improper or (3) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 7.7 Waiver of Jury Trial. 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 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 7.7.
Section 7.8 Headings; Interpretation. 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. The parties have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement. Unless the context of this Agreement clearly requires otherwise, use of the masculine gender shall include the feminine and neutral genders and vice versa, and the definitions of terms contained in this Agreement are applicable to the singular as well as the plural forms of such terms. The words includes or including shall mean including without limitation. The words hereof, hereby, herein, hereunder and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear, the word extent in the phrase to the extent shall mean the degree
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to which a subject or other thing extends and such phrase shall not mean simply if. Any reference to a law shall include any rules and regulations promulgated thereunder, and shall mean such law as from time to time amended, modified or supplemented. References herein to any contract (including this Agreement) mean such contract as amended, supplemented or modified from time to time in accordance with the terms thereof.
Section 7.9 Counterparts. 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.
Section 7.10 Specific Performance. 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, without proof of the inadequacy of money damages and without posting any bond or other security. Each of the parties hereby further waives (i) any defense in any action for specific performance that a remedy at law would be adequate and (ii) any requirement under any law to post security or a bond as a prerequisite to obtaining equitable relief.
Section 7.11 Amendment. Until the Effective Time, this Agreement may not be amended except by an instrument in writing signed by (i) the Company, (ii) Greenlight, (iii) New Holders (including Permitted Transferees) holding securities that at the Effective Time will become a majority-in-interest (such Holders, the New Holders Majority) of the then-outstanding number of Registrable Securities held by all New Holders (including Permitted Transferees) in their capacities as New Holders (including Permitted Transferees), (iv) Original Holders (including Permitted Transferees) holding a majority-in-interest (such Holders, the Original Holders Majority) of the then-outstanding number of Registrable Securities held by the Original Holders in their capacities as Original Holders (including Permitted Transferees) and (v) any Holder whose rights and/or obligations under this Agreement are materially and adversely affected by such amendment, unless such amendment is signed by Holders holding a majority-in-interest of the then-outstanding number of Registrable Securities (or, as applicable, securities that at the Effective Time will become such securities) held by all Holders whose rights and/or obligations under this Agreement are affected in a substantially similar manner. After the Effective Time, this Agreement may not be amended except by an instrument in writing signed by (i) the Company, (ii) Holders holding a majority-in-interest (such Holders, the Holders Majority) of the then-outstanding number of Registrable Securities held by all Holders and (iii) any Holder whose rights and/or obligations under this Agreement are materially and adversely affected by such amendment, unless such amendment is signed by Holders holding a majority-in-interest of the then-outstanding number of Registrable Securities held by all Holders whose rights and/or obligations under this Agreement are affected in a substantially similar manner.
Section 7.12 Waiver. At any time, the Company (and, until the Effective Time, Greenlight) may (i) extend the time for the performance of any obligation or other act of any Holder, (ii) waive any inaccuracy in the representations and warranties of any Holder contained herein or in any document delivered by such Holder pursuant hereto and (iii) waive compliance
29
with any agreement of such Holder or any condition to its own obligations contained herein. Until the Effective Time, Greenlight, the New Holders Majority and the Original Holders Majority may, and after the Effective Time, the Holders Majority may, (i) extend the time for the performance of any obligation or other act of the Company, (ii) waive any inaccuracy in the representations and warranties of the Company contained herein or in any document delivered by the Company pursuant hereto and (iii) waive compliance with any agreement of the Company or any condition to their 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 specified in this Section 7.12 for such extension or waiver. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder by such party.
Section 7.13 Further Assurances. At the request of the Company, in the case of any Holder, or at the request of any Holder, in the case of the Company, and 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.
Section 7.14 No Strict Construction. 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.
(Next Page is Signature Page)
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the date first written above.
COMPANY: | ||
Environmental Impact Acquisition Corp. | ||
By: | /s/ Daniel Coyne | |
Name: Daniel Coyne | ||
Title: Chief Executive Officer |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
CG INVESTMENTS INC. VI | ||
By: | /s/ Jeff Barlow | |
Name: Jeff Barlow | ||
Title: President |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
HB STRATEGIES LLC | ||
By: | /s/ Richard Allison | |
Name: Richard Allison | ||
Title: Authorized Signatory* | ||
*Authorized Signatory | ||
Hudson Bay Capital Management LP not individually, but solely as | ||
Investment Advisor to HB Strategies LLC |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
ANDREY ZARUR | ||
By: | /s/ Andrey Zarur | |
Name: Andrey Zarur | ||
Title: |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
BAIRD VENTURE PARTNERS V | ||
LIMITED PARTNERSHIP | ||
By: Baird Venture Partners Management | ||
Company V, LLC, its general partner | ||
By: | /s/ Michael Liang | |
Name: Michael Liang | ||
Title: Director |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
BAIRD V AFFILIATES FUND LIMITED PARTNERSHIP | ||
By: | /s/ Michael Liang | |
Name: Michael Liang | ||
Title: Director |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
BVP V SPECIAL AFFILIATES LIMITED PARTNERSHIP | ||
By: | /s/ Michael Liang | |
Name: Michael Liang | ||
Title: Director |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
FALL LINE ENDURANCE FUND, LP | ||
By: Fall Line Endurance GP, LLC, its General Partner | ||
By: | /s/ Eric OBrien | |
Name: Eric OBrien | ||
Title: Managing Member |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
FURNEAUX CAPITAL HOLDCO, LLC | ||
By: | /s/ Dave Furneaux | |
Name: Dave Furneaux | ||
Title: Managing Partner |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
KHOSLA VENTURES SEED B (CF), LP | ||
By: | /s/ John Demeter | |
Name: John Demeter | ||
Title: General Counsel |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
KHOSLA VENTURES SEED B, LP | ||
By: | /s/ John Demeter | |
Name: John Demeter | ||
Title: General Counsel |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
KHOSLA VENTURES V, LP | ||
By: Khosla Ventures Associates V, LLC, a Delaware limited liability company and general partner of Khosla Ventures V, LP | ||
By: | /s/ John Demeter | |
Name: John Demeter | ||
Title: General Counsel |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
KODIAK III ENTREPRENEURS FUND, L.P. | ||
By: | /s/ Dave Furneaux | |
Name: Dave Furneaux | ||
Title: Managing General Partner |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
KODIAK VENTURE PARTNERS III, L.P. | ||
By: Kodiak Ventures Management III, L.P., its General Partner | ||
By: Kodiak Ventures Management (GP), LLC, its General Partner | ||
By: Kodiak Ventures Management Company, Inc., its Member | ||
By: | /s/ Dave Furneaux | |
Name: Dave Furneaux | ||
Title: Managing General Partner |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
MLS CAPITAL FUND II, L.P. | ||
By: | /s/ Ganesh Kishore | |
Name: Ganesh Kishore | ||
Title: Manager |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder:
MORNINGSIDE VENTURE INVESTMENTS LIMITED | ||
By: | /s/ Jill Marie Franklin/Frances Anne Elizabeth Richard | |
Name: | Jill Marie Franklin/Frances Anne Elizabeth Richard | |
Title: | Authorized Signatures |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
S2G VENTURES FUND I, L.P. | ||
By its General Partner | ||
S2G Ventures, LLC | ||
By: | /s/ Sanjeev Krishnan | |
Name: Sanjeev Krishnan | ||
Title: Manager |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
S2G VENTURES FUND II, L.P. | ||
By its General Partner | ||
S2G Ventures II, LLC | ||
By: | /s/ Sanjeev Krishnan | |
Name: Sanjeev Krishnan | ||
Title: Manager |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
S2G VENTURES FUND III, L.P. | ||
By its General Partner | ||
S2G Ventures III, LLC | ||
By: | /s/ Sanjeev Krishnan | |
Name: Sanjeev Krishnan | ||
Title: Manager |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
SERIES GREENLIGHT, a separate series of BlueIO Growth LLC | ||
By: | /s/ Dave Furneaux | |
Name: Dave Furneaux | ||
Title: Managing Partner |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
SERIES GREENLIGHT 2, a separate series of BlueIO Growth LLC | ||
By: | /s/ Dave Furneaux | |
Name: Dave Furneaux | ||
Title: Managing Partner |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
DAVID B. BREWSTER | ||
By: | /s/ David B. Brewster | |
Name: | David B. Brewster | |
Title: |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
DEVAL L PATRICK | ||
By: | /s/ Deval L Patrick | |
Name: | Deval L Patrick | |
Title: |
[Signature Page to Investor Rights Agreement]
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first written above.
Holder: | ||
DEAN SEAVERS | ||
By: | /s/ Dean Seavers | |
Name: | Dean Seavers | |
Title: |
[Signature Page to Investor Rights Agreement]
Schedule A
Original Holders
CG Investments Inc. VI
HB Strategies LLC
New Holders
Andrey Zarur |
Baird Venture Partners V Limited Partnership |
BVP V Affiliates Fund Limited Partnership |
BVP V Special Affiliates Limited Partnership |
Fall Line Endurance Fund, LP |
Furneaux Capital Holdco, LLC |
Khosla Ventures Seed B (CF), LP |
Khosla Ventures Seed B, LP |
Khosla Ventures V, LP |
Kodiak III Entrepreneurs Fund, L.P. |
Kodiak Venture Partners III, L.P. |
MLS Capital Fund II, L.P. |
Morningside Venture Investments Limited |
S2G Ventures Fund I, L.P. |
S2G Ventures Fund II, L.P. |
S2G Ventures Fund III, L.P. |
Series Greenlight |
Series Greenlight 2 |
Independent Directors
David Brewster
Deval L. Patrick
Dean Seavers
Exhibit 10.4
FORM OF TRANSACTION SUPPORT AGREEMENT
This TRANSACTION SUPPORT AGREEMENT (this Agreement) is entered into as of August 9, 2021, by and between Environmental Impact Acquisition Corp., a Delaware corporation (ENVI), and , a (the Supporting Company Shareholder). Each of ENVI and the Supporting Company Shareholder are sometimes referred to herein individually as a Party and collectively as the Parties. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Business Combination Agreement (defined below).
RECITALS
WHEREAS, on August 9, 2021, ENVI, Honey Bee Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of ENVI (Merger Sub), and GreenLight Biosciences, Inc., a Delaware corporation (the Company), entered into that certain Business Combination Agreement (as amended or modified from time to time in accordance with its terms, the Business Combination Agreement) pursuant to which, among other things, Merger Sub will merge with and into the Company, with the Company as the surviving company in the merger and, after giving effect to such merger, becoming a wholly owned Subsidiary of ENVI, and each Company Share (including the Subject Company Shares (as defined below)) will be converted into the right to receive ENVI Shares, in each case, on the terms and subject to the conditions set forth in the Business Combination Agreement;
WHEREAS, the Supporting Company Shareholder is the record and beneficial owner of the number and class or series (as applicable) of issued and outstanding Company Shares set forth on Schedule A hereto (the Owned Shares, and together with any other Company Shares that the Supporting Company Shareholder acquires record and beneficial ownership after the date hereof, collectively, the Subject Company Shares);
WHEREAS, the Business Combination Agreement contemplates that, concurrently with the entry into the Business Combination Agreement by the parties thereto, each Supporting Company Shareholder set forth on Annex B attached thereto will enter into this Agreement, pursuant to which, among other things, the Supporting Company Shareholder will agree to (a) support and vote in favor of the Business Combination Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated thereby (including the Merger); (b) take, or cause to be taken, any actions necessary or advisable to cause certain agreements to be terminated effective as of immediately prior to the Effective Time; (c) subject to certain exceptions or as otherwise set forth herein, not, directly or indirectly, sell, assign, transfer (including by operation of law), create any Lien or pledge, dispose of or otherwise encumber any securities or other equity interests of the Company or otherwise agree to do any of the foregoing, and (d) not solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal; and
WHEREAS, in consideration for the benefits to be received by the Supporting Company Shareholder under the terms of the Business Combination Agreement and as a material inducement to ENVI and the other ENVI Parties agreeing to enter into and consummate the transactions contemplated by the Business Combination Agreement, the Supporting Company Shareholder agrees to enter into this Agreement and to be bound by the
agreements, covenants and obligations contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
AGREEMENT
1. Company Shareholder Consent and Related Matters.
(a) As promptly as reasonably practicable (and in any event within five (5) Business Days) following the date on which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Supporting Company Shareholder, in its, his or her capacity as a shareholder of the Company, shall duly execute and deliver to the Company and ENVI the Company Shareholder Written Consent under which it, he, or she shall irrevocably and unconditionally consent with respect to the Subject Company Shares held as of the record date for such Company Shareholder Written Consent to the adoption and approval of the Business Combination Agreement and the transactions contemplated thereby (including the Merger). Without limiting the generality of the foregoing, prior to the Closing the Supporting Company Shareholder shall vote (or cause to be voted) the Subject Company Shares in favor of and/or consent to any such other matters, actions or proposals necessary or reasonably requested by the Company or ENVI for consummation of the Merger or the other transactions contemplated by the Business Combination Agreement; provided, that nothing in this Agreement shall preclude the Supporting Company Shareholder from exercising full power and authority to vote (or to abstain from voting) the Subject Company Shares in the Supporting Company Shareholders sole discretion for or against, and the proxy granted pursuant to this Agreement shall not cover, any proposal submitted to a vote of the shareholders of the Company (1) that decreases the amount or changes the form of the consideration payable to the Supporting Company Shareholder or (2) that imposes any material restrictions or additional conditions on the consummation of the Merger or the payment of the ENVI Shares to the Supporting Company Shareholder, in the case of either clause (1) or (2), that is not contemplated by the Business Combination Agreement or the Ancillary Documents (clauses (1) and (2), collectively, the Excluded Voting Matters). Without limiting the generality of the foregoing, prior to the Closing, the Supporting Company Shareholder shall vote (or cause to be voted) the Subject Company Shares against and withhold consent with respect to (A) any Company Acquisition Proposal or (B) any other matter, action or proposal that would reasonably be expected to result in (x) a breach of any of the Supporting Company Shareholders covenants, agreements or obligations under this Agreement, (y) a breach of any of the Companys covenants, agreements or obligations under the Business Combination Agreement or (z) any of the conditions to the Closing set forth in Sections 6.1 or 6.2 of the Business Combination Agreement not being satisfied.
(b) Without limiting any other rights or remedies of ENVI, the Supporting Company Shareholder hereby irrevocably appoints ENVI or any officer of ENVI designated by ENVI as the Supporting Company Shareholders agent, attorney-in-fact and proxy (with full power of substitution and resubstitution), for and in the name, place and stead of the Supporting Company Shareholder, (i) to attend on behalf of the Supporting Company Shareholder any meeting of the Company Shareholders with respect to the matters described in Section 1(a), (ii) to include the Subject Company Shares in any computation for purposes of establishing a quorum at any such meeting of the Company Shareholders and (iii) to vote
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(or cause to be voted), or deliver a written consent (or withhold consent) with respect to, the Subject Company Shares on the matters specified in, and in accordance and consistent with (and for the avoidance of doubt excluding the Excluded Voting Matters), Section 1(a) in connection with any meeting of the Company Shareholders or any action by written consent by the Company Shareholders (including the Company Shareholder Written Consent), in each case, in the event that the Supporting Company Shareholder fails to perform, to be counted as present thereat or otherwise comply with the covenants, agreements or obligations set forth in Section 1(a).
(c) The proxy granted by the Supporting Company Shareholder pursuant to Section 1(b) is coupled with an interest sufficient in law to support an irrevocable proxy and is granted in consideration for ENVI entering into the Business Combination Agreement and agreeing to consummate the transactions contemplated thereby. The proxy granted by the Supporting Company Shareholder pursuant to Section 1(b) is also a durable proxy and shall survive the bankruptcy, dissolution, death, incapacity or other inability to act by the Supporting Company Shareholder and shall revoke any and all prior proxies granted by the Supporting Company Shareholder with respect to the Subject Company Shares, other than that certain proxy in Section 5.2 of the Fifth Amended and Restated Voting Agreement, dated as of June 15, 2020, by and among the Company and certain shareholders party thereto (the Voting Agreement) that is applicable to a Sale of the Company (as defined therein) but not, for the avoidance of doubt, applicable to the transactions contemplated by the Business Combination Agreement or the Ancillary Documents. The vote or consent of the proxyholder in accordance with Section 1(b) and with respect to the matters described in Section 1(a) shall control in the event of any conflict between such vote or consent by the proxyholder of the Subject Company Shares and a vote or consent by the Supporting Company Shareholder of the Subject Company Shares (or any other Person with the power to vote or provide consent with respect to the Subject Company Shares) with respect to the matters described in Section 1(a). The proxyholder may not exercise the proxy granted pursuant to Section 1(b) on any matter except for those matters described in Section 1(a).
2. Other Covenants and Agreements.
(a) Confidentiality. The Supporting Company Shareholder hereby acknowledges and agrees that the information being provided in connection with this Agreement, the Business Combination Agreement and the consummation of the transactions contemplated hereby and thereby is subject to the terms of that certain Mutual Confidentiality Agreement, dated February 12, 2021, by and between the Company and ENVI, a form of which is attached hereto as Exhibit A (the Confidentiality Agreement) and the terms of which are incorporated herein by reference, that such information constitutes confidential information of each of the Company and ENVI, that the Supporting Company Shareholder shall be bound by the Confidentiality Agreement to the same extent as if it were a party thereto as a recipient of confidential information thereunder, and that the Supporting Company Shareholder shall not disclose any such confidential information except as otherwise permitted by the Confidentiality Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, in the event that this Section 2(a) or the Confidentiality Agreement conflicts with any other covenant or agreement contained in this Agreement, the Business Combination Agreement, or any Ancillary Document that contemplates the disclosure, use or provision of information or otherwise, then such other covenant or agreement contained in this Agreement, the Business Combination Agreement or such Ancillary Document, as applicable, shall govern and control to the extent of such conflict.
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(b) Public Announcements. The Supporting Company Shareholder agrees that neither the Supporting Company Shareholder nor any of the Supporting Company Shareholders Representatives shall issue any press releases or make any public announcements with respect to this Agreement or the Business Combination Agreement or the transactions contemplated hereby and thereby without the prior written consent of the Company and ENVI; provided, however, that the Supporting Company Shareholder and the Supporting Company Shareholders Representatives may make any such announcement or other communication (i) if such press release, announcement or other communication is required by applicable Law, in which case (A) prior to the Closing, the Supporting Company Shareholder shall, to the extent permitted by such applicable Law, use commercially reasonable efforts to consult with the Company and ENVI and give each of the Company and ENVI the opportunity to review such announcement or communication and comment thereon and the disclosing Person shall consider such comments in good faith, or (B) after the Closing, the Supporting Company Shareholder and/or the Supporting Company Shareholders Representatives, as applicable, shall, to the extent permitted by such applicable Law, use commercially reasonable efforts to consult with ENVI and give ENVI the opportunity to review such announcement or communication and comment thereon and the disclosing Person shall consider such comments in good faith, (ii) to the extent such press release, announcement or other communication contains only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 2(b) and (iii) to Governmental Entities in connection with any Consents required to be obtained or made under this Agreement, the Business Combination Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.
(c) Exclusive Dealing. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Supporting Company Shareholder shall not, and shall cause the Supporting Company Shareholders Representatives and controlled Affiliates not to, directly or indirectly: (i) solicit, initiate, knowingly induce, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding (whether or not binding) regarding a Company Acquisition Proposal; (iv) make any filings or submissions with the SEC in connection with any offering of any Equity Securities, or other securities, of any Group Company other than any such filings or submissions required or otherwise expressly contemplated by the Business Combination Agreement; or (v) otherwise cooperate in any way with, or assist or participate in any negotiations or discussions with, any Person in connection any Company Acquisition Proposal or a transaction of the type in clause (iv) (other than to inform such Person of the existence of the Supporting Company Shareholders obligations under this Section 2(c)).
(d) Trust Account Waiver. The Supporting Company Shareholder acknowledges and agrees and understands that ENVI has established the Trust Account containing the proceeds of its IPO (including the proceeds of the exercise by the underwriters of their over-allotment option) and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Public Shareholders of ENVI, and that ENVI may disburse monies from the Trust Account only in the express circumstances described in the Prospectus. For and in consideration of ENVI entering into the Business Combination Agreement, and for other good and valuable
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consideration, the receipt and sufficiency of which are hereby acknowledged, the Supporting Company Shareholder hereby agrees on behalf of the Supporting Company Shareholder and the Supporting Company Shareholders Representatives that, notwithstanding anything to the contrary in this Agreement or the Business Combination Agreement, neither the Supporting Company Shareholder nor any of the Supporting Company Shareholders Representatives (acting through the Supporting Company Shareholder) does now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or the Business Combination Agreement or any proposed or actual business relationship between ENVI or its Representatives, on the one hand, and the Company or its Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the Trust Account Released Claims). The Supporting Company Shareholder, on behalf of the Supporting Company Shareholder and the Supporting Company Shareholders Representatives (acting through the Supporting Company Shareholder), hereby irrevocably waives any Trust Account Released Claims that the Supporting Company Shareholder or any of the Supporting Company Shareholders Representatives (acting through the Supporting Company Shareholder) may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, Contracts or agreements with ENVI or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of any agreement with ENVI or its affiliates), other than any proceeds that may be released from the Trust Account upon the consummation of the Merger.
(e) Acknowledgement of Reliance. The Supporting Company Shareholder acknowledges and agrees that ENVI and the other ENVI Parties are entering into the Business Combination Agreement in reliance upon the Supporting Company Shareholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and, without the Supporting Company Shareholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement, ENVI and the other ENVI Parties would not have entered into or agreed to consummate the transactions contemplated by the Business Combination Agreement or the Ancillary Documents.
(f) Waiver of Rights of Appraisal or Rights to Dissent. The Supporting Company Shareholder hereby waives, and agrees not to assert or perfect, any rights of appraisal or rights to dissent from the Merger or any other transaction contemplated by the Business Combination Agreement that the Supporting Company Shareholder may have by virtue of ownership of the Subject Company Shares.
(g) Further Assurances. From time to time, at ENVIs request and without further consideration, the Supporting Company Shareholder shall execute and deliver such additional documents and take all further action as may be reasonably necessary or reasonably requested to effect the actions and consummate the transactions contemplated by this Agreement. The Supporting Company Shareholder further agrees not to commence or participate (in a manner adverse to ENVI or the Company) in, and to take all actions necessary to opt out of any class in any class action with respect to, any Proceeding, derivate or otherwise, against ENVI, the
5
Company or any of their respective Affiliates, challenging the transactions contemplated by the Business Combination Agreement or disputing the allocation of the consideration payable as part of the Merger pursuant to the terms of the Business Combination Agreement (including any Proceeding (i) challenging the validity of, or seeking to enjoin the operation of, any provision of the Business Combination Agreement or (ii) alleging breach of any fiduciary duty of the Company Board in connection with this Agreement, the Business Combination Agreement, any other Ancillary Agreement or any of the transactions contemplated hereby or thereby), except for any Proceeding to collect Merger consideration owed to the Supporting Company Shareholder pursuant to the terms of the Business Combination Agreement, or to enforce the Supporting Company Shareholders right under the Investor Rights Agreement following the Closing.
(h) Authorization to Publish. The Supporting Company Shareholder hereby authorizes ENVI and the Company to publish and disclose in any announcement, filing or disclosure required to be made by any Order or other applicable Law or the rules of any national securities exchange or as requested by the SEC the Supporting Company Shareholders identity and ownership of Equity Securities of the Company or ENVI and the nature of the Supporting Company Shareholders obligations under this Agreement.
(i) Termination of Investor Agreements. The Supporting Company Shareholder hereby agrees that, effective immediately prior to, and contingent upon, the Effective Time, each of (i) the Fifth Amended and Restated Investors Rights Agreement, dated as of June 15, 2020, by and among the Company and the Investor parties thereto, as amended, (ii) the Fifth Amended and Restated Right of First Refusal and Co-Sale Agreement, dated as of June 15, 2020, by and among the Company and the Investor and Key Holder parties thereto, as amended, (iii) the Fifth Amended and Restated Voting Agreement, dated as of June 15, 2020, by and among the Company and the Investor and Key Holder parties thereto, as amended, and (iv) any management rights letter, investor side letter or other investor agreement providing for board observer rights, information rights, inspection rights or other rights of investors, in each case between or among the Company and the Supporting Company Shareholder (and/or other persons), and all rights and obligations contained therein, will be terminated in all respects, the survival of any provision therein will be waived in all respects, and such agreements will cease to have any force or effect upon termination. In accordance with Section 2(g), upon request, the Supporting Company Shareholder shall promptly execute and deliver to the Company a separate termination agreement evidencing the forgoing in such form as the Company shall reasonably request.
3. Supporting Company Shareholder Representations and Warranties. The Supporting Company Shareholder represents and warrants to ENVI as follows:
(a) If the Supporting Company Shareholder is an entity, the Supporting Company Shareholder is a corporation, limited liability company or other applicable business entity duly organized or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of formation or organization (as applicable).
(b) The Supporting Company Shareholder has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement, to perform his, her or its covenants, agreements and obligations hereunder (including, for the avoidance of doubt, those covenants, agreements and obligations hereunder that relate to the provisions of the Business Combination Agreement), and to consummate the transactions
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contemplated hereby. The execution and delivery of this Agreement has been duly authorized by all necessary corporate (or other similar) action on the part of the Supporting Company Shareholder. This Agreement has been duly and validly executed and delivered by the Supporting Company Shareholder and constitutes a valid, legal and binding agreement of the Supporting Company Shareholder (assuming that this Agreement is duly authorized, executed and delivered by ENVI), enforceable against the Supporting Company Shareholder in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors rights and subject to general principles of equity).
(c) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of the Supporting Company Shareholder with respect to the Supporting Company Shareholders execution, delivery or performance of his, her or its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby, except for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not adversely affect the ability of the Supporting Company Shareholder to perform, or otherwise comply with, any of his, her or its covenants, agreements or obligations hereunder in any material respect.
(d) None of the execution or delivery of this Agreement by the Supporting Company Shareholder, the performance by the Supporting Company Shareholder of any of his, her or its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) if the Supporting Company Shareholder is an entity, result in any breach of any provision of the Supporting Company Shareholders Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which the Supporting Company Shareholder is a party, (iii) violate, or constitute a breach under, any Order or applicable Law to which the Supporting Company Shareholder or any of his, her or its properties or assets are bound or (iv) result in the creation of any Lien upon the Subject Company Shares, except, in the case of any of clauses (ii) and (iii) above, as would not adversely affect the ability of the Supporting Company Shareholder to perform, or otherwise comply with, any of his, her or its covenants, agreements or obligations hereunder in any material respect.
(e) The Supporting Company Shareholder is the record and beneficial owner of the Owned Shares and has valid, good and marketable title to the Owned Shares, free and clear of all Liens (other than transfer restrictions under applicable Securities Law or under the Company Shareholders Agreement or Governing Documents). Except for the Equity Securities of the Company set forth on Schedule A hereto, together with any other Equity Securities of the Company that the Supporting Company Shareholder acquires record or beneficial ownership after the date hereof, the Supporting Company Shareholder does not own, beneficially or of record, any Equity Securities of any Group Company or have the right to acquire any Equity Securities of any Group Company. Except as contemplated in Section
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5.2 of the Voting Agreement with respect to a Sale of the Company (as defined therein), which does not, for the avoidance of doubt, apply to the transactions contemplated by the Business Combination Agreement or the Ancillary Documents, the Shareholder has the sole right to vote (and provide consent in respect of, as applicable) the Owned Shares and, except for this Agreement, the Business Combination Agreement and the Company Shareholders Agreement, the Supporting Company Shareholder is not party to or bound by (i) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more events, developments or events (including the satisfaction or waiver of any conditions precedent)) require the Supporting Company Shareholder to Transfer any of the Subject Company Shares or (ii) any voting trust, proxy or other Contract with respect to the voting or Transfer of any of the Subject Company Shares that would adversely affect the ability of the Supporting Company Shareholder to perform, or otherwise comply with, any of his, her or its covenants, agreements or obligations hereunder in any material respect.
(f) There is no Proceeding pending or, to the Supporting Company Shareholders knowledge, threatened in writing against or involving the Supporting Company Shareholder or any of his, her or its Affiliates that, if adversely decided or resolved, would reasonably be expected to adversely affect the ability of the Supporting Company Shareholder to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement in any material respect.
(g) The Supporting Company Shareholder, on his, her or its own behalf and on behalf of his, her or its Representatives, acknowledges, represents, warrants and agrees that (i) he, she or it has conducted his, her or its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of, the ENVI Parties and the transactions contemplated by this Agreement, the Business Combination Agreement and the other Ancillary Documents to which he, she or it is or will be a party and (ii) he, she or it has been furnished with or given access to such documents and information about the ENVI Parties and their respective businesses and operations as he, she or it and his, her or its Representatives have deemed necessary to enable him, her or it to make an informed decision with respect to the execution, delivery and performance of this Agreement or the other Ancillary Documents to which he, she or it is or will be a party and the transactions contemplated hereby and thereby.
(h) In entering into this Agreement and the other Ancillary Documents to which he, she or it is or will be a party, the Supporting Company Shareholder has relied solely on his, her or its own investigation and analysis and the representations and warranties expressly set forth in the Ancillary Documents to which he, she or it is or will be a party and no other representations or warranties of any ENVI Party (including, for the avoidance of doubt, none of the representations or warranties of any ENVI Party set forth in the Business Combination Agreement or any other Ancillary Document) or any other Person, either express or implied, and the Supporting Company Shareholder, on his, her or its own behalf and on behalf of his, her or its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in this Agreement or in the other Ancillary Documents to which he, she or it is or will be a party, none of the ENVI Parties or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Business Combination Agreement or the other Ancillary Documents or the transactions contemplated hereby or thereby.
4. Transfer of Subject Company Shares; Change in Capital Stock.
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(a) Except as expressly contemplated by the Business Combination Agreement or with the prior written consent of ENVI (such consent to be given or withheld in its sole discretion), from and after the date hereof, the Supporting Company Shareholder agrees not to (a) Transfer any of the Subject Company Shares, (b) enter into (i) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more other developments or events (including the satisfaction or waiver of any conditions precedent)) require the Supporting Company Shareholder to Transfer the Subject Company Shares or (ii) any voting trust, proxy or other Contract with respect to the voting or Transfer of the Subject Company Shares, or (c) enter into any Contract to take, or cause to be taken, any of the actions set forth in clauses (a) or (b); provided, however, that the foregoing shall not apply to any Transfer (A) to a person or entity who is a party to a transaction support agreement with ENVI that is substantially similar to this Agreement, (B) in the case of an individual, by will or intestate succession upon the death of the individual (it being understood and agreed that the appointment of one or more executors, administrators or personal representatives of the estate of an individual shall not be deemed a Transfer hereunder to the extent that such executors, administrators and/or personal representatives comply with the terms of this Agreement on behalf of such estate); (C) in the case of an individual, pursuant to a qualified domestic relations order, court order or in connection with a divorce settlement, (D) in the case of an individual, to a trust, family limited partnership or other entity Controlled by such individual and formed primarily for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of such individual or any other person with whom the individual has a relationship by blood, marriage or adoption not more remote than first cousin; (E) to an Affiliate Controlled by the Supporting Company Shareholder; or (F) to a nominee or custodian of a permitted transferee under clauses (A) through (E) above; provided, that the Supporting Company Shareholder shall, and shall cause any transferee of any Transfer of the type set forth in clauses (A) through (F) to, enter into a written agreement in form and substance reasonably satisfactory to ENVI, agreeing to be bound by this Agreement (which will include, for the avoidance of doubt, all of the covenants, agreements and obligations of the Supporting Company Shareholder hereunder and the making of all the representations and warranties of the Supporting Company Shareholder set forth in Section 3 with respect to such transferee and his, her or its Subject Company Shares received upon such Transfer, as applicable) prior and as a condition to the occurrence of such Transfer. For purposes of this Agreement, Transfer means any, direct or indirect, sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest or encumbrance in or disposition of an interest (whether with or without consideration, whether voluntarily or involuntarily or by operation of law or otherwise).
(b) In the event of a stock split, stock dividend or distribution, or any change in the Companys capital stock by reason of a split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the term Owned Shares and Subject Company Shares shall be deemed to refer to and include such shares as well as all such stock dividends and distributions and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
5. Termination. This Agreement (including the proxy granted pursuant to Section 1) shall automatically terminate, without any notice or other action by any Party, and be void ab initio upon the earliest of (a) the Effective Time, (b) the termination of the Business Combination Agreement in accordance with its terms and (c) the mutual written agreement of the Parties. Upon termination of this Agreement as provided in the immediately preceding
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sentence, none of the Parties shall have any further obligations or Liabilities under, or with respect to, this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) the termination of this Agreement pursuant to Section 5(b) shall not affect any Liability on the part of any Party for a Willful Breach of any covenant or agreement set forth in this Agreement prior to such termination or Fraud, (ii) Section 2(a) (Confidentiality) and the representations and warranties set forth in Sections 3(g) and (h) shall each survive any termination of this Agreement, (iii) Section 2(b) (Public Announcements) and Section 16 shall each survive the termination of this Agreement pursuant to Section 5(a), (iv) Section 2(d) (Trust Account Waiver) shall survive the termination of this Agreement pursuant to Section 5(b) and (A) this Section 5, Sections 6 and 7, Section 11, Section 14 and Section 15 and (B) Sections 8 through 10, Sections 12 and 13 and Sections 17 through 22 (to the extent related to any of the provisions that survive the termination of this Agreement) shall survive any termination of this Agreement. For purposes of this Agreement, (x) Willful Breach means a material breach of this Agreement by a Party that is a consequence of an act undertaken or a failure to act by the breaching Party with the knowledge that the taking of such act or such failure to act would, or would reasonably be expected to, constitute or result in a breach of this Agreement and (y) Fraud means an act or omission by a Party, and requires: (A) a false or incorrect representation or warranty expressly set forth in this Agreement, (B) with actual knowledge (as opposed to constructive, imputed or implied knowledge) by the Party making such representation or warranty that such representation or warranty expressly set forth in this Agreement is false or incorrect, (C) an intention to deceive another Party, to induce him, her or it to enter into this Agreement, (D) another Party, in justifiable or reasonable reliance upon such false or incorrect representation or warranty expressly set forth in this Agreement, causing such Party to enter into this Agreement, and (E) another Party to suffer damage by reason of such reliance. For the avoidance of doubt, Fraud does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud or any torts (including a claim for fraud or alleged fraud) based on negligence or recklessness.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) the Supporting Company Shareholder makes no agreement or understanding herein in any capacity other than in the Supporting Company Shareholders capacity as a record holder and beneficial owner of the Subject Company Shares, and not in the Supporting Company Shareholders capacity as a director, officer or employee of any Group Company or in the Supporting Company Shareholders capacity as a trustee or fiduciary of any Company Equity Plan, as applicable, and (b) nothing herein will be construed to limit or affect any action or inaction by the Supporting Company Shareholder or any representative of the Supporting Company Shareholder serving as a member of the board of directors of any Group Company or as an officer, employee or fiduciary of any Group Company, in each case, acting in such persons capacity as a director, officer, employee or fiduciary of such Group Company.
7. No Recourse. Except for claims pursuant to the Business Combination Agreement or any other Ancillary Document by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein, each Party agrees that (a) this Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and no claims of any nature whatsoever (whether in tort, contract or otherwise) arising under or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby shall be asserted against the Company or any Company Affiliated Party (other than the Supporting Company Shareholder named as a party hereto, on the terms and subject to the conditions set forth herein) or any ENVI Affiliated
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Party, and (b) none of the Company, any Company Affiliated Party (other than the Supporting Company Shareholder named as a party hereto, on the terms and subject to the conditions set forth herein) or any ENVI Affiliated Party shall have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter, or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished in connection with this Agreement, the negotiation hereof or the transactions contemplated hereby, except, in each case, as provided herein.
8. 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) by delivery in person, by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the e-mail was sent to the intended recipient thereof without an error or similar message that such e-mail was not received by such intended recipient)), by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) or by reputable overnight courier (fees prepaid) (upon the next Business Day) to the other Parties as follows:
If to ENVI (prior to the Effective Time), to:
Environmental Impact Acquisition Corp. | ||
535 Madison Avenue | ||
New York, NY 10022 | ||
Attention: | Legal Department | |
Email: | lteipner@cgf.com |
With a copy (which shall not constitute notice) to:
Latham & Watkins LLP
10250 Constellation Blvd., Suite 1100
Los Angeles, CA 90067
Steven B. Stokdyk and Brian Duff
steven.stokdyk@lw.com; brian.duff@lw.com
If to the Supporting Company Shareholder, to the address and email set forth on the signature pages hereto.
with a copy (which shall not constitute notice) to:
GreenLight Biosciences, Inc. | ||
200 Boston Avenue, Suite 3100 | ||
Medford, MA 02155 | ||
Attention: | General Counsel | |
Email: | notices@greenlightbio.com |
with a copy (which shall not constitute notice) to:
Foley Hoag LLP
155 Seaport Blvd.
Boston, MA 02210
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Attention: | Dave Broadwin; John D. Hancock | |
Email: | dab@foleyhoag.com; jdh@foleyhoag.com |
and a copy (which shall not constitute notice) to:
Foley Hoag LLP | ||
1301 Avenue of the Americas, 25th Floor | ||
New York, NY 10019 | ||
Attention: | Adrienne Ellman | |
Email: | aellman@foleyhoag.com |
or to such other address as the Party to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
9. Entire Agreement. This Agreement, the Business Combination Agreement and documents referred to herein and therein constitute the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersede all prior and contemporaneous agreements and undertakings, both written and oral, between the Parties with respect to the subject matter of this Agreement, except as otherwise expressly provided in this Agreement.
10. Amendments and Waivers; Assignment. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Supporting Company Shareholder and ENVI. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or of any other right hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assignable by any Party without ENVIs prior written consent (in the case of the Supporting Company Shareholder) and the Supporting Company Shareholders written consent (in the case of ENVI) (in each case, to be withheld or given in its sole discretion). Any attempted assignment of this Agreement not in accordance with the terms of this Section 10 shall be void.
11. Fees and Expenses. Without limiting ENVIs rights under the Business Combination Agreement, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses.
12. Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy would occur in the event that either Party does not perform his, her or its respective obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that each Party shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that he, she or it will not oppose the granting of an injunction,
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specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other Party has an adequate remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity.
13. Third-Party Beneficiaries. This Agreement shall be for the sole benefit of the Parties and their respective successors and permitted assigns and is not intended, nor shall be construed, to give any Person, other than the Parties and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever by reason this Agreement. Nothing in this Agreement, expressed or implied, is intended to or shall constitute the Parties as partners or participants in a joint venture.
14. No Ownership Interest. Nothing contained in this Agreement will be deemed to vest in ENVI any direct or indirect ownership or incidents of ownership of or with respect to the Subject Company Shares. All rights, ownership and economic benefits of and relating to the Subject Company Shares shall remain vested in and belong to the Supporting Company Shareholder, and ENVI shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Supporting Company Shareholder in the voting of any of the Subject Company Shares, except as otherwise expressly provided herein with respect to the Subject Company Shares. Except as otherwise expressly provided in Section 1, the Supporting Company Shareholder shall not be restricted from voting in favor of, against or abstaining with respect to, or giving (or withholding) the Supporting Company Shareholders written consent to any other matters presented to the shareholders of the Company. Without limiting the foregoing, nothing in this Agreement shall obligate or require the Supporting Company Shareholder to exercise an option or warrant to purchase any Company Shares.
15. Acknowledgements. The Parties each acknowledge that (x) Latham & Watkins LLP, counsel for ENVI, is representing ENVI in connection with this Agreement, the Business Combination Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby and (y) Foley Hoag LLP, counsel for the Company, is representing the Company in connection with this Agreement, the Business Combination Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby. The Supporting Company Shareholder acknowledges that (x) neither of the foregoing firms is representing the Supporting Company Shareholder in connection with this Agreement, the Merger, the Business Combination Agreement, the Ancillary Documents or the transactions contemplated hereby, thereby or otherwise and (y) he, she or it has had the opportunity to consult with his, her or its own counsel.
16. Non-Survival. The representations and warranties, and each of the agreements and covenants (to the extent such agreement or covenant contemplates or requires performance at or prior to the Effective Time) in this Agreement shall terminate at the Effective Time. Each covenant and agreement contained herein that, by its terms, expressly contemplates performance after the Effective Time shall so survive the Effective Time in accordance with its terms.
17. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.
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18. Construction; Interpretation. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, herein, hereto, hereof and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) the references to the pronoun they or them when referring to a natural person shall also include the feminine and other genders; (c) the words include, includes or including shall be deemed to be followed by the words without limitation; (d) references to $ or dollar or US$ shall be references to United States dollars; (e) the word or is disjunctive but not necessarily exclusive; (f) the words writing, written and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (g) the word day means calendar day unless Business Day is expressly specified; (h) the word extent in the phrase to the extent means the degree to which a subject or other thing extends, and such phrase shall not mean simply if; (i) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement; (j) all references to any Law will be to such Law as amended, supplemented or otherwise modified or re-enacted from time to time; and (k) all references to any Contract are to that Contract as amended or modified from time to time in accordance with the terms thereof (subject to any restrictions on amendments or modifications set forth in this Agreement). If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter.
19. Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall 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 of this Agreement is invalid, illegal or unenforceable under applicable Law, 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 an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
20. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by e-mail, DocuSign (or similar platform) or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement.
21. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS
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AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT EITHER PARTY MAY FILE AN ORIGINAL COUNTERPART OF THIS AGREEMENT OR A COPY THEREOF WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 21.
22. Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, the Superior Court of the State of Delaware, or the United States District Court for the District of Delaware), for the purposes of any Proceeding, claim, demand, action or cause of action (a) arising under this Agreement or (b) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any of the transactions contemplated hereby or any of the transactions contemplated thereby. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding, claim, demand, action or cause of action against such Party (i) arising under this Agreement or (ii) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any of the transactions contemplated hereby or any of the transactions contemplated thereby, (A) any claim that such Party is not personally subject to the jurisdiction of the courts as described in this Section 22 for any reason, (B) any claim that such Party or such Partys property is exempt or immune from the 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) any claim that (x) the Proceeding, claim, demand, action or cause of action in any such court is brought against such Party in an inconvenient forum, (y) the venue of such Proceeding, claim, demand, action or cause of action against such Party is improper or (z) this Agreement, or the subject matter hereof, may not be enforced against such Party in or by such courts. Each Party agrees that service of any process, summons, notice or document by registered mail or overnight courier to such Partys address set forth in Section 8 shall be effective service of process for any such Proceeding, claim, demand, action or cause of action.
[Signature page follows]
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed on its behalf as of the day and year first above written.
ENVIRONMENTAL IMPACT ACQUISITION CORP. | ||
By: |
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Name: | Daniel Coyne | |
Title: | Chief Executive Officer and Director | |
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Name of Stockholder | ||
By: |
| |
Name: |
| |
Title: |
| |
Email: |
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SCHEDULE A
Owned Shares | ||
Class/Series Securities |
Number of Shares | |
Company Series A Preferred Shares | ||
Company Series B Preferred Shares | ||
Company Series C Preferred Shares | ||
Company Series D Preferred Shares | ||
Company Common Shares | ||
Other Equity Securities of the Company | ||
Company Options | ||
Company Warrants | ||
Convertible Notes |
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Exhibit 99.1
GreenLight Biosciences announces business agreement with Environmental Impact Acquisition Corp. to become publicly traded company, allowing it to better harness its breakthrough platform to develop and produce RNA for human therapies and agriculture
| GreenLight Biosciences, Inc. to become publicly listed through business combination with Environmental Impact Acquisition Corp. (Nasdaq: ENVI) |
| Transaction advances development of breakthrough biomanufacturing platform capable of discovering, developing, scaling, and commercializing ribonucleic acid (RNA) solutions at volume across multiple sectors in agricultural and human health markets. |
| This combination creates a company rooted in global impact and sustainability with a diverse product pipeline addressing two of humanitys greatest challenges and largest opportunities: food security and human health. |
| Transaction expected to generate proceeds to fund operations of $282 million, assuming delivery of the full amount held in trust by ENVI, and $105 million of fully committed PIPE financing that includes S2G Ventures, Cormorant Asset Management, Morningside Venture Investments, Hudson Bay Capital, BNP Paribas Ecosystem Restoration Fund, The Jeremy and Hannelore Grantham Environmental Trust, Continental Grain Company, Pura Vida Investments LLC, Xeraya Capital, and MLS Fund II/Spruce. |
| All GreenLight shareholders and management to roll 100% of their equity into the new company with many existing GreenLight shareholders participating in the PIPE financing. |
| Transaction expected to be completed in the fourth quarter of 2021; after the transaction closes, the combined company will be listed on Nasdaq with an estimated enterprise value of $1.2 billion. |
BOSTON, August 10, 2021GreenLight Biosciences, Inc. (GreenLight), a biotechnology company dedicated to making ribonucleic acid (RNA) products affordable and accessible for human health and agriculture, and Environmental Impact Acquisition Corp. (Nasdaq: ENVI), a publicly traded special purpose acquisition company, have agreed to a business combination that will result in GreenLight becoming a publicly-listed company.
We are thrilled to partner with Environmental Impact Acquisition Corp. to accelerate our vision and advance the delivery of our solutions to where they are needed most, with shared goals to pave the way for a sustainable planet through widely available and affordable RNA, says Andrey Zarur, co-founder and CEO of GreenLight.
The GreenLight team has created a platform that can accelerate discovery, development, scaling, and delivery of RNA products cost efficiently and at large-scale.
We believe that GreenLights breakthrough platform can create advanced therapies, vaccines, and crop-protection products that addressquickly, directly, and specificallysome of the most significant problems facing the world today, says Zarur. Going public through this partnership will accelerate development and commercialization by enabling us to attract the talent, purchase the tools, scale our manufacturing infrastructure, advance regulatory approvals, and develop further the science necessary to address some of humanitys most pressing challenges.
When considering quality merger partners that aligned with our mission of delivering environmental and social impact, we saw GreenLight as both a notable and compelling partner for ENVI and our shareholders. In creating ENVI, our goal was to partner with a high-growth, technology-rich business, propelled by a large market opportunity and a business model supporting critical sustainability initiatives. We are excited to announce this merger with GreenLight, as there is alignment on how our combined resources may create value for our stakeholders, and how our capital may be invested in a purpose-driven platform committed to improving humanity. GreenLight has a pipeline of RNA products spanning human, animal, and plant health that are being developed to serve the needs of billions, promoting improved access to wellness, sustainable agriculture, and health, said Dan Coyne, CEO of Environmental Impact Acquisition Corp. GreenLight has assembled a diverse, talented, qualified, and exceptional team that has built multiple companies. GreenLight is driven to make this cutting-edge platform a reality so that it is available to the world and understands what it takes to deliver breakthrough technology to market. We share GreenLights enthusiasm for this combination.
GreenLight Biosciences Overview
GreenLight harnesses the power of biology to develop RNA-based solutions for some of humanitys greatest challenges in human health through mRNA vaccines and therapeutics and in food production through RNA crop-protection products. The companys breakthrough cell-free RNA manufacturing platform, which is protected by numerous patents, allows for cost-effective and scalable production of RNA.
Proceeds from the transaction are expected to provide GreenLight with the capital needed to advance the following priorities:
For crop management and plant protection, GreenLights most advanced products in development are RNA-based pesticides aimed at protecting honeybees, which are key plant pollinators, from the parasitic varroa destructor mite, and protecting staple food products from destructive insect pests. The traditional chemical pesticides currently in use face increasing consumer opposition and the threat of outright bans due to concerns over their damage to the environment. In addition, crop-destructive pests have developed resistance to many traditional pesticides. Also, the non-specificity of traditional pesticides can result in the unintended killing of insects that are beneficial to crops.
For human health, GreenLight is developing an mRNA manufacturing platform aimed at providing mRNA-based therapeutics at scale and an appropriate price for global needs. The companys lead vaccine programs include vaccine candidates for Covid-19 and influenza. Earlier-stage programs are being developed to address other unmet medical needs, such as sickle cell disease.
Transaction Overview
Following the close, GreenLight will have a pro forma enterprise value of approximately $1.2 billion based on the $10.00 per share price of ENVI common stock.
The transaction will provide estimated proceeds to fund operations of $282 million assuming delivery of the full amount held in trust by ENVI. This includes $105 million in proceeds from a fully committed common stock PIPE transaction priced at $10.00 per share, demonstrating strong support from investors including S2G Ventures, Cormorant Asset Management, Morningside Venture Investments, Hudson Bay Capital, BNP Paribas Ecosystem Restoration Fund, The Jeremy and Hannelore Grantham Environmental Trust, Continental Grain Company, Pura Vida Investments LLC, Xeraya Capital, and MLS Fund II/Spruce. The PIPE financing is subject to customary closing conditions and is expected to close immediately prior to the business combination.
GreenLight will continue to be led by co-founder and CEO Andrey Zarur and supported by the existing management team.
The Boards of Directors of Environmental Impact Acquisition Corp. and GreenLight have approved the transaction. The transaction will require the approval of the stockholders of both Environmental Impact Acquisition Corp. and GreenLight and is subject to other customary closing conditions, including the receipt of certain regulatory approvals. The transaction is expected to close in the fourth quarter of 2021. Additional information about the proposed transaction, including a copy of the Business Combination Agreement and investor presentation, will be provided in a Current Report on Form 8-K to be filed by Environmental Impact Acquisition Corp. today with the Securities and Exchange Commission (SEC) and available at www.sec.gov.
SVB Leerink LLC and Credit Suisse Securities (USA) LLC are acting as financial and capital markets advisors to GreenLight and co-placement agents on the PIPE transaction. Foley Hoag LLP is acting as legal advisor to GreenLight. Canaccord Genuity is acting as financial advisor and Latham & Watkins LLP is acting as legal advisor to Environmental Impact Acquisition Corp.
About Environmental Impact Acquisition Corp.
Environmental Impact Acquisition Corp. is a blank check company incorporated for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, or other similar business combination with one or more businesses. While the Company may pursue a business combination target in any industry or geographic region, the Company intends to focus on identifying businesses that offer products, services and technologies that, in addition to serving the needs of customers, generate positive impacts for the environment. The Company is sponsored by CG Investments Inc. VI, an affiliate of Canaccord Genuity, which manages several investment vehicles.
About GreenLight Biosciences
GreenLight Biosciences is an integrated life sciences company with a breakthrough biomanufacturing platform for discovering, developing, scaling, and commercializing ribonucleic acid (RNA) solutions at volume for a diverse product pipeline across agriculture and human health. Applications include vaccine development, pandemic preparation, crop management, and plant protection. The GreenLight team values diversity, inclusion, and equality and uses collaboration to remain scientifically imaginative and passionately focused on making a difference in the world. For more information, visit https://www.greenlightbiosciences.com/
CONTACTS
GreenLight Biosciences Contacts
Thomas Crampton
SVP and head of Corporate Affairs
+19142022762
tcrampton@greenlightbio.com
GreenLight media contact
press@greenlightbio.com
GreenLight Investor Relations
investors@greenlightbio.com
Environmental Impact Acquisition Corp. contact
Daniel Coyne
Chief Executive Officer
ENVI.Inquiries@cgf.com
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the federal securities laws with respect to the proposed transaction between GreenLight and ENVI, including statements regarding the anticipated benefits of the transaction, the anticipated timing of the transaction, the future business and financial condition of GreenLight and
expected financial impacts of the transaction (including equity value and cash funding), the satisfaction of closing conditions to the transaction, the PIPE transaction, the level of redemptions of ENVIs public stockholders; the market opportunities for GreenLights product candidates; and the potential for regulatory approval for GreenLights product candidates. These forward-looking statements generally are identified by the words believe, project, expect, anticipate, estimate, intend, strategy, future, opportunity, plan, may, should, will, would, will be, will continue, will likely result and similar expressions. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this press release, including but not limited to: the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect the price of ENVIs securities; the failure to satisfy the conditions to the consummation of the transaction, including the approval of the business combination agreement by the stockholders of ENVI, the satisfaction of the minimum cash amount held by ENVI following any redemptions by its public stockholders and the receipt of certain governmental and regulatory approvals; potential changes to the proposed structure of the business combination that may be required or appropriate to achieve the intended tax treatment or to satisfy other legal or regulatory requirements; the lack of a third-party valuation in determining whether or not to pursue the proposed transaction; the potential inability to complete the PIPE transaction; the occurrence of any event, change or other circumstance that could give rise to the termination of the business combination agreement; the potential inability to maintain the listing of ENVIs securities with the Nasdaq Stock Market, Inc.; the outcome of any legal proceedings that may be instituted against GreenLight or ENVI related to the business combination agreement or the proposed transaction; unanticipated costs related to the transaction and the potential failure to realize anticipated benefits of the transaction or to realize estimated pro forma results and underlying assumptions, including with respect to estimated shareholder redemptions; potential exercise of appraisal rights by some GreenLight stockholders, which may reduce available cash; the effect of the announcement or pendency of the transaction on GreenLights business relationships, operating results, and business generally; risks that the proposed transaction disrupts current plans and operations of GreenLight; the need to obtain regulatory approval for GreenLights product candidates; the risk that clinical trials will not demonstrate that GreenLights therapeutic product candidates are safe and effective; the risk that GreenLights product candidates will have adverse side effects or other unintended consequences, which could impair their marketability; the risk that GreenLights product candidates do not satisfy other legal and regulatory requirements for marketability in one or more jurisdictions; the risks of enhanced regulatory scrutiny of mRNA solutions; the potential inability to achieve GreenLights goals regarding scalability and affordability of its product candidates; the anticipated need for additional capital to achieve GreenLights business goals; changes in the industries in which GreenLight operates; changes in laws and regulations affecting the business of GreenLight; and the potential inability to implement or achieve business plans, forecasts, and other expectations after the completion of the proposed transaction. The foregoing list of factors is not exhaustive. Readers should carefully consider the foregoing factors and the other risks and uncertainties described in the Risk Factors section of
the registration statement on Form S-4 discussed below and other documents filed by ENVI 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 ENVI and GreenLight 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. Neither ENVI nor GreenLight gives any assurance that GreenLight or ENVI, or the combined company, will achieve any result described in any forward-looking statement.
Important Information and Where to Find It
This press release relates to a proposed transaction between GreenLight Biosciences, Inc. and Environmental Impact Acquisition Corp. This press release does not constitute either (a) a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed business combination or (b) an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
ENVI intends to file a registration statement on Form S-4 with the SEC, which will include a document that serves as a prospectus and proxy statement of ENVI, referred to as a proxy statement/prospectus. The proxy statement/prospectus will be sent to all ENVI shareholders after the registration statement is declared effective by the SEC. ENVI also will file other documents regarding the proposed transaction with the SEC. This press release does not contain all of the information that will be contained in the proxy statement/prospectus or other documents filed with the SEC. Before making any voting decision, investors and security holders of ENVI are urged to read the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they become available because they will contain important information about the proposed transaction.
Investors and security holders will be able to obtain free copies of the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by ENVI through the website maintained by the SEC at www.sec.gov or by sending a written request to ENVI at: ENVI.Inquiries@cgf.com.
Participants in the Solicitation
ENVI and its directors and executive officers may be deemed to be participants in the solicitation of proxies from ENVIs shareholders in connection with the proposed transaction. A list of the names of such directors and executive officers and information regarding their interests in the proposed business combination will be contained in the proxy statement/prospectus when available. You may obtain free copies of these documents as described in the preceding paragraph.
GreenLight and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from ENVIs stockholders in connection with the proposed transaction. A list of the names of such directors and executive officers and information regarding their interests in the proposed business combination will be contained in the proxy statement/prospectus when available. You may obtain free copies of these documents as described in the second preceding paragraph.
END
What if we could make RNA accessible to everyone? Exhibit 99.2
Disclaimer Caution Regarding Forward Looking Statements Certain statements included in this Investor Presentation (“Presentation”) that are not historical facts are forward-looking statements for purposes of US law. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “pipeline”, “predict,” “project,” “forecast,” “potential,” “seem,” “seek,” “strategy,” “future,” “outlook,” “opportunity,” “should,” “would,” “will be,” “will continue,” “will likely result” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding operating results, product field tests, clinical trials, future liquidity, the proposed transaction between Environmental Impact Acquisition Corporation ("ENVI") and GreenLight, including statements as to the expected timing, funding, completion and effects of the Proposed Business Combination or other steps or transactions associated with it and financial estimates, forecasts, and performance metrics and projections of market opportunity. These statements are based on various assumptions, whether or not identified in this Presentation, and on the current expectations of the respective management of GreenLight and Environmental Impact Acquisition Corporation ("ENVI") and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by an investor as, a guarantee, an assurance, a prediction, or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of GreenLight and Environmental Impact Acquisition Corporation ("ENVI") . These forward-looking statements are subject to a number of risks and uncertainties, including the extent of the impact of the COVID-19 pandemic, changes in domestic and foreign business, market, financial, political, and legal conditions; the inability of the parties to successfully or timely consummate the Proposed Business Combination, including the risk that any regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the Proposed Business Combination or that the approval of the stockholders of Environmental Impact Acquisition Corporation ("ENVI") or GreenLight is not obtained; failure to realize the anticipated benefits of the Proposed Business Combination; risks relating to the uncertainty of the projected financial information with respect to GreenLight; risks related to the development, trial and regulatory approval of GreenLight’s products; the effects of competition on GreenLight’s business; the amount of redemption requests made by Environmental Impact Acquisition Corporation’s ("ENVI") stockholders; and the ability of Environmental Impact Acquisition Corporation ("ENVI") or GreenLight to issue equity or equity-linked securities or obtain debt financing in connection with the Proposed Business Combination or in the future. There may be additional risks that neither Environmental Impact Acquisition Corporation ("ENVI") nor GreenLight presently know, or that Environmental Impact Acquisition Corporation ("ENVI") nor GreenLight currently believe are immaterial, that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect Environmental Impact Acquisition Corporation’s ("ENVI") and GreenLight’s expectations, plans, or forecasts of future events and views as of the date of this Presentation. Environmental Impact Acquisition Corporation ("ENVI") and GreenLight anticipate that subsequent events and developments will cause Environmental Impact Acquisition Corporation’s ("ENVI") and GreenLight’s assessments to change. However, while Environmental Impact Acquisition Corporation ("ENVI") and GreenLight may elect to update these forward-looking statements at some point in the future, Environmental Impact Acquisition Corporation ("ENVI") and GreenLight specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing Environmental Impact Acquisition Corporation’s ("ENVI") and GreenLight’s assessments of any date after the date of his Presentation. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Disclaimer Use of projections This Presentation contains projected financial information with respect to GreenLight. Such projected financial information constitutes forward-looking information and is for illustrative purposes only. Financial projections should not be relied upon as necessarily being indicative of future results. The assumptions and estimates underlying such financial forecast information are inherently uncertain and are subject to a wide variety of significant business, economic, competitive, and other risks and uncertainties. See “Forward-Looking Statements” above. Actual results may differ materially from the results contemplated by the financial forecast information contained in this Presentation, and the inclusion of such information in this Presentation should not be regarded as a representation by any person that the results reflected in such forecasts will be achieved. No representations or warranties No representations or warranties, express or implied are given in, or in respect of, this Presentation. To the fullest extent permitted by law in no circumstances will Environmental Impact Acquisition Corporation ("ENVI"), GreenLight or any of their respective subsidiaries, stockholders, affiliates, representatives, directors, officers, employees, advisers, or agents by responsible or liable for a direct, indirect, or consequential loss or loss of profit arising from the use of this Presentation its contents, its omissions, reliance on the information contained within it, or on opinions communicated in relation thereto or otherwise arising in connection therewith. Industry and market data used in this Presentation have been obtained from third-party industry publications and sources as well as from research reports prepared for other purposes. Neither Environmental Impact Acquisition Corporation ("ENVI") nor GreenLight has independently verified the data obtained from these sources and cannot assure you of the data’s accuracy or completeness. This data is subject to change. In addition, this Presentation does not purport to be all-inclusive or to contain all of the information that may be required to make a full analysis of GreenLight or the Proposed Business Combination. Viewers of this Presentation should each make their own evaluation of GreenLight and of the relevance and adequacy of the information and should make such other investigations as they deem necessary. No offer or solicitation This Presentation is for informational purposes only and is not an offer to sell, or the solicitation of an offer to buy, any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful. This Presentation has been prepared to assist interested parties in making their own evaluation with respect to a potential business combination between GreenLight Biosciences, Inc. (“GreenLight”) and Environmental Impact Acquisition Corporation ("ENVI") and the related transactions (the “Proposed Business Combination”) and for no other purpose. Neither the Securities and Exchange Commission nor any securities commission of any other U.S. or non-U.S. jurisdiction has approved or disapproved of the Proposed Business Combination or determined that this Presentation is truthful or complete. Any representation to the contrary is a criminal offense.
Disclaimer Trademarks All trademarks, service marks, and trade names of Environmental Impact Acquisition Corporation ("ENVI") or GreenLight or their respective affiliates used herein are trademarks, service marks, or registered trade names of Environmental Impact Acquisition Corporation ("ENVI") or GreenLight, respectively, as noted herein. Any other product, company names, or logos mentioned herein are the trademarks and/or intellectual property of their respective owners, and their use is not intended to, and does not imply, a relationship, endorsement, sponsorship or future dealings with Environmental Impact Acquisition Corporation ("ENVI") or GreenLight. Participants in the solicitation GreenLight, Environmental Impact Acquisition Corporation ("ENVI") and their respective directors and certain of their respective executive officers and other members of management and employees may be considered participants in the solicitation of proxies with respect to the Proposed Business Combination. Information about the directors and executive officers of Environmental Impact Acquisition Corporation ("ENVI") is in its Form 10-K for the fiscal year ended December 31, 2020 and information about GreenLight’s directors, officers and employees can be found at www.greenlightbiosciences.com. Additional information regarding the participants in the proxy solicitation and a description of their direct interests, by security holdings or otherwise, will be set forth in the Registration Statement and other relevant materials to be filed with the SEC regarding the Proposed Business Combination. Stockholders, potential investors and other interested persons should read the Registration Statement carefully before making any voting or investment decisions. These documents, when available, can be obtained free of charge from the sources indicated above. Financial information The financial information and data contained in this Presentation is unaudited and does not conform to Regulation S-X. Accordingly, such information and data may not be included in, may be adjusted in, or may be presented differently in, any proxy statement/prospectus or registration statement or other report or document to be filed or furnished by Environmental Impact Acquisition Corporation ("ENVI") with the SEC. Some of the financial information and data contained in this Presentation has not been prepared in accordance with United States generally accepted accounting principles (“GAAP”). Environmental Impact Acquisition Corporation ("ENVI") and GreenLight believe these non-GAAP measures of financial results provide useful information to management and investors regarding certain financial and business trends relating to GreenLight’s financial condition and results of operations. You should review GreenLight’s audited financial statements prepared in accordance with GAAP, which will be included in a combined registration statement and proxy statement to be filed with the SEC.
Partner with a high-growth, market leading business, propelled by a large & growing market opportunity and a business model supporting critical Sustainability initiatives Revolutionary RNA technology offers truly differentiated solutions Addressing multiple billion-dollar Agricultural & Health market opportunities with unique synthetic biology platform Compelling growth story with strong alignment with Sustainability & ESG initiatives; it is an Impact story Multi-decade focus on Sustainability Advised hundreds of growth companies on strategic transactions and capital raising activities Deep knowledge of relevant trends and thought leadership within Sustainability Commitment and mission to impact the world and its population positively Environmental Impact (ENVI) platform overview Experienced Team with Proven Track Record Board of Directors Vision & Mandate Dan Coyne, CEO Serves as Canaccord Genuity’s Co-Head of U.S. Investment Banking and Global Head of Sustainability Investment Banking Helped develop CG’s active Tech. & Sustainability Investment Banking teams 26 years of banking experience with over 250 transactions closed with a focus on growth companies Marc Marano, CFO Managing Director in CG’s Sustainability Investment Banking practice Closed 100+ transactions over past 15 years, focusing almost exclusively on Sustainability David Brewster Co-Founder EnerNOC Gov. Deval Patrick Former Governor Commonwealth of Mass. Dean Seavers Chair of the Board PG&E Jen Pardi Global Head of ECM Canaccord Genuity Sustainability-Focused Mission Why GreenLight? Shared Passion & Vision
GreenLight Bio. & Environmental Impact - Shared mission to deliver global Impact Environmental Impact Acquisition Corp. Andrey J. Zarur, Ph.D CEO Susan Keefe, MBA CFO Dan Coyne CEO & President Marc Marano CFO GreenLight Biosciences ENVI is excited to be GreenLight’s aligned partner in its mission to address urgent food security needs and enable a healthier and “pandemic proof” future for humanity Key Highlights GreenLight Biosciences (“GreenLight” or the “Company”) is a mission-driven synthetic biology platform developing RNA-based solutions for agriculture (plant health & pest control) and healthcare (vaccines & therapeutics) and various applications in these large segments GreenLight is targeting two of humanity’s biggest challenges and largest economic opportunities: Food Security / Scarcity and Human Health GreenLight’s platform is enabled by a proprietary, cell-free manufacturing process that produces high-quality RNA solutions in a more scalable, flexible and affordable manner than alternative technologies GreenLight and Environmental Impact Acquisition Corp. (“ENVI”) are combining to build out the Company’s RNA production capabilities and advance its pipeline of 14 agriculture and human health products Existing GreenLight shareholders will roll 100% of their equity; several have also invested in PIPE ENVI has $207 million of cash in trust and a PIPE of $105 million Pro forma enterprise value of $1.2 billion for GreenLight
Create Solutions to major challenges facing humanity through the rigorous application of biological sciences Deliver Innovative RNA-based products for sustainable food production and human health, with our breakthrough synthetic biology platform Reward Our shareholders, employees, and stakeholders by growing sustainably and responsibly GreenLight’s vision: Pave the way for a sustainable planet through widely available and affordable RNA
Greenlight exists to bring RNA solutions to solve some of the world’s most pressing challenges We will be 9 billion humans on earth by 2037, increasingly adopting a middle-class lifestyle. For survival of humanity and the planet, our diets must be less carbon-intense. We must stop clearing land and reduce our use of chemical pesticides and fertilizers. We must end this pandemic, prepare for the next one, and develop innovative approaches to grave diseases in underserved parts of the world. Cutting-edge medicines and healthcare should be available to all.
GreenLight’s pioneering platform offers affordable RNA solutions to the world We will enable affordable and globally scaled RNA applications in agriculture, and human health Higher Quality Agriculture-Grade Human-Grade In-vitro transcription Chemical synthesis Fermentation - not viable for RNA in agricultural or human use RNA Production Matrix More affordable Cell-based Cell-free
GreenLight technology has removed barriers to RNA use in agriculture by delivering Cost less than $1/g dsRNA Scale +1,000 L batch for multi-kg-scale dsRNA Opens a wide range of new and high-value applications for RNA in agriculture Agricultural RNA expertise enables new and newly accessible human health applications RNA Building Blocks (NMPs) Enzyme (Nuclease) Instructions (DNA Template) Microbial RNA (e.g., yeast) Enzymes (Kinases, Polymerase) dsRNA Active Ingredient Energy (Polyphosphate) Formulation varies from product-to-product Product Stability 25⁰C 2 years Quality, Ease of Use and Efficacy GreenLight’s dsRNA proprietary manufacturing process for Agriculture Depolymerize Cell-free RNA Production Energize & Polymerize Building Blocks Recovery Cell-free dsRNA production platform with unprecedented scale and reduced dependencies
Our cell-free engine has overcome development and commercialization barriers for RNA We remove hurdles to implementing and scaling RNA for human, plant, and animal health Identify Bioinformatics Tools such as machine learning and proprietary algorithms identify best gene target candidates to protect food crops, design advanced medicines and vaccines for human and animal health Develop and optimize Massive parallel trials High-throughput automation enables trialing of 1,000s of distinct RNA sequences for human health and food security Scale Commercialize at competitive prices Proprietary cell-free system enables scale up of RNA manufacturing, effectively, expediently and at lower costs Rochester facility. dsRNA installed capacity at 500 kg per year with ready expansion to 1,000 kg
Enabled by our platform, we will pursue a mix of collaborations and branded products Cost-effective production can open up numerous categories of GreenLight products and collaborations GREDEC012E Food company partnerships Biomolecules, including sweeteners mRNA The instructions to make proteins dsRNA The ability to suppress protein synthesis Vaccines 2019: $33B1 2020: $93B2 Gene therapies 2021: $3.4B4 Insecticide $17 bn5 Fungicide $16.5 bn5 Agriculture company partnerships Pharma company partnerships Agriculture and Food Production Cost, scale, stability, speed, quality Human Health Scale, speed, modularity Categories Products (1) World Health Organization and MI4A, "Global Vaccine Market Report," (2020) (2) Fortune Business Insights, "Vaccines Market to Touch USD 105.87B by 2027," (2020) (3) Fortune Business Insights, "Monoclonal Antibody Market to Reach USD 350B by 2027," (2020) (4) Grandview Research: “Gene Therapy Market Size, Share & Trends Analysis Report, 2021 – 2028” (5) AgBioInvestor - AgBioSelect Database Markets GreenLight’s cell-free platform.
Launch Launch Launch Launch Launch Launch Launch 6 more agricultural programs planned for 2027 and beyond 2021 2022 2023 2024 2025 2026 Colorado Potato Beetle Varroa Mite Botrytis Diamondback Moth Fusarium Powdery Mildew Two Spotted Spider Mite Covid Vaccine Seasonal Flu Supra-seasonal Flu Antibody therapy SCD Gene Therapy P2/P3 Launch P1 Launch P1 P2/P3 P1 P1 P1 : Partnership milestone P1 P2/P3 : Clinical phase : EPA submission GreenLight’s cumulative TAM $350M ~$33B ~$34B ~$40B ~$41B Nine projected product launches and multiple clinical milestones through 2026 Acquisitions and in-licensing deals have potential to further boost pipeline from GreenLight’s engine
Our Team Exceptional management team with diverse public company expertise and proven track record of success Andrey J. Zarur Ph.D CEO Charu Manocha MBA CPO Susan Keefe MBA CFO Thomas Crampton SVP & Head Corporate Affairs Carole Cobb MBA COO David Kennedy General Counsel Marta Ortega-Valle MBA CBO Human Health Mark Singleton Ph.D SVP Technologies and External Innovation, Discovery Plant Health 15 Companies founded 8 Companies taken public 100+ Years of public company experience Amin Khan Ph.D Chief Scientific Officer, Human Health
Plant and animal health platforms: Insecticides, fungicides and acaricides
Price and performance of first-ever foliar RNA product highly competitive with other premium solutions The active ingredients in many conventional pesticides for Colorado Potato Beetle—and many for other pests—have a use rate 50x that of GreenLight and face increasing resistance by pests. Environmental residue from chemical pesticides may endure for decades. e.g., Environmental DDT still easily detected 50 years being banned by EPA. Biodiversity concerns prompting governments bans on many widely used conventional pesticides. EPA banned 12 pesticides as toxic to beneficials and pollinators. EU has banned all outdoor uses of the 3 largest Group 4b neonicotinoids. Toxicity and residue Effectiveness and use rate Effective control at extremely low active ingredient use rate for our first product, Colorado Potato Beetle, at just 4 g/acre. Roughly equivalent to a spoonful of sugar spread on football field. Proven safe for nontarget insects, mammals at use rates 100x higher than our recommended rate. Degrades in water and soil within 3 days to benign, natural nucleotides. No toxicity in normal use to honeybees, butterflies, beneficials, or other non-target organisms. Specialist PPE often required for farmers Application submitted for standard handling equipment Biodiversity and pollinators GreenLight dsRNA Conventional Pesticides Product Safety GreenLight product pipeline will address farmer, consumer, and environmental concerns
Program Collaborator Discovery & lab studies Greenhouse trials Confirmatory trials POC field trials Regulatory submission Expected launch year TAM Colorado Potato Beetle 2022 $350M Varroa Mite 2024 $290M Botrytis 2025 $1.2B Diamondback Moth 2025 $890M Fusarium * 2025 $950M Powdery Mildew * 2025 $1.4B Fall Armyworm 2027 $1.9B Pollen Beetle 2027 $185M Two Spotted Spider Mite * 2026 $1.1B Asian Soybean Rust * 2028 $2.0B Black Sigatoka * 2028 $2.4B Wheat Septoria 2027 $700M Vine Downy Mildew * 2028 $440M Total >$10B *In negotiations on R&D collaboration with major agribusiness(es) Rapid discovery to address emerging climate-driven farmer pain points Pipeline stretches from protecting honeybees to fresh produce and large-scale crops, a $10bn addressable market
Colorado Potato Beetles decimate fields of potatoes, eggplants, and bell peppers Untreated, 30 days 4 g of GreenLight RNA per acre Biodiversity-supporting solution to >$500M problem, from discovery to EPA submission in just four years Meets farmers’ buying criteria Equivalent efficacy to existing chemical-based treatments Cost competitive to other premium solutions Compatible with farmers’ standard operating procedures Safe to use for operators and consumers Low to no detectable residue Does not harm beneficials or pollinators Potato fields protected in 2020 field trials
While farmers benefit from effective new tool, they use standard application methods Mixed with water and sprayed using standard agricultural practice over crops, the dsRNA is used at a rate of a few grams per acre. This is less than one-tenth the rate at which conventional industrial chemicals are normally used on fields. Consumption of the dsRNA causes the Colorado Potato Beetle to stop eating the potatoes and expire from its own toxins. Mode of action Sprayed from standard water tanks, degrades within days from field Application Studies show selected dsRNA affects only the Colorado Potato Beetle, leaving other beneficials —including honeybees, butterflies, earthworms, and the closely related ladybug—unaffected. The dsRNA itself degrades within days. Environmental impact
The 3 million commercial honeybee colonies in the United States are used to pollinate more than 100 crops annually that are worth an estimated $15 billion. Some crops, such as almonds, are almost entirely dependent on pollination. The single greatest threat to honeybees, Varroa destructor mite, has been detected in up to 90% of US hives. The parasitic mite reproduces in hives, feeds on honeybees, and spreads disease, destroying colonies across North and South America, Europe, Asia, and Africa. Popular current applications result in bee injury and death. GreenLight’s RNA-based solution, now in field trials, directly targets the Varroa mite to protect bees, beekeepers, and pollination-dependent crops. Honeybee colony devastation threatens crops and food supply GreenLight solution protects bees, beekeepers, and pollination-dependent crops Varroa destructor mite on honeybee pupa
Saving honeybees: Rapid roadmap to commercialization December 10, 2020 GreenLight acquires from Bayer Input materials and formulation development dsRNA production and packaging validation GreenLight field trials in beehives Manufacture process and formulation locked Regulatory studies and registration submission Product branding, marketing, and consumer education US EPA registration Product launch and first full-year sales Today 2022 2024 GreenLight acquired Bayer Intellectual Property portfolio that includes product to protect honeybees from Varroa mites Projected
Human health applications: Vaccines, therapies, antibodies Solutions for pandemics and more equitable access to novel therapies for grave diseases
Application Target Collaborator Early Pre-clinical Pre-clinical Toxicity Clinical Development Phase 1 | Phase 2 | Phase 3 Anticipated Clinical Development Start Date Vaccine COVID-19 updated for VoC H1 2022 Vaccine Seasonal influenza H2 2022 Gene Therapy Sickle Cell Disease gene TBD Antibody Therapy Antibody undisclosed TBD Vaccine Supra-seasonal influenza H1 2024 Human Health pipeline focused on large and significant markets mRNA design flexibility coupled with our production capability can enable rapid development of vaccines and therapies Target timing to seek development/commercialization partnership * Candidate selected and toxicology studies to be initiated Vaccine Gene Therapy Antibody Therapy ACADEMIC PARTNER ACADEMIC PARTNER Vaccine Pre-IND submitted to FDA* ACADEMIC PARTNER ACADEMIC PARTNER Vaccine Funder
Company Mouse Neutralizing Ab Titer CD4 Response CD8 Response ~130,000 at 5µg dose Assay : Clinical Isolate Th1-bias 1.5 – 3.5% of CD4 T cells producing cytokines Very little Th2 cytokines by ELISA 5-12.5% of CD8 T cells responding to restimulation by flow cytometry ~300 at 5µg dose Assay : Pseudovirus Th1-bias Used ELISpot, not easily compared to flow cytometry Very little Th2 cytokines by ELISA Used a different flow cytometry assay, difficult to compare results. ~100 at 1µg dose Assay : Pseudovirus Th1-bias 0.1 – 0.2% of CD4 T cells producing cytokines No ELISA data 0.5-1.25% of CD8 T cells responding to restimulation by flow cytometry ~5120 at 2µg dose Assay : Clinical Isolate Flow data suggests a Th1 bias, but cytokine data suggests a mixed Th1/Th2 response ELISA data does not mirror flow cytometry well 0.2 – 0.6% of CD4 making Th1 cytokines 5-15% of CD8 T Cells responding to restimulation by flow cytometry GreenLight’s Covid-19 vaccine candidate has strong preclinical performance Comparable preclinical performance to other mRNA vaccines Sources: Vogel, A. et al.”A prefusion SARS-CoV-2 spike RNA vaccine is highly immunogenic and prevents lung infection in non-human primates” (2020); Corbett, K.S., Edwards, D.K., Leist, S.R. et al. Nature (2020); Corbett, K.S. et al. NEJM (2020); Rauch, S. et al. “mRNA vaccine CVnCoV protects non-human primates from SARS-CoV-2 challenge infection” (2020); Rauch, S. et al.Nature (2021)
GreenLight’s Covid-19 vaccine candidate All doses of GreenLight vaccine protected hamsters against weight loss following intranasal viral challenge Our GreenLight mRNA vaccine candidate induced high levels of binding and neutralizing antibodies at all doses tested Hamster body weight change on virus challenge Neutralizing antibody levels in hamsters % BW Change from Baseline (Day 0) MEAN ± SEM Immune response protects against viral challenge
Company Agent Name Description Stage of Development GLB-flu-xx Seasonal influenza Preclinical Phase 1 projected to begin 2H 2022 BNT-161 Seasonal influenza Preclinical Phase 1 to begin 2H 2021 mRNA-1010 mRNA-1020 mRNA-1030 mRNA-1440 Seasonal influenza Seasonal influenza Seasonal influenza Avian influenza virus Phase 1 to begin in 2021 Phase 1 to begin in 2021 Phase 1 to begin in 2021 Positive Ph1 reported in 2017 CV7301 Undisclosed Seasonal influenza Universal influenza with Gates Funding Preclinical Preclinical Undisclosed Undisclosed IND enabling Phase 1 to begin in 2021 LUNAR-FLU Seasonal influenza Preclinical IND filing expected 1H 2022 mRNA Influenza vaccines in development Success of COVID-19 RNA vaccines has renewed interest in influenza
Promising GreenLight influenza vaccine candidate High levels of antibody production and protection against viral challenge Our vaccine candidates protect all mice from lethal influenza virus challenge Percent Survival Survival post-challenge with virus GLB quadrivalent candidate GLB HA+NA candidate Saline Days Post Challenge % BW Change from Baseline (Day 0) MEAN ± SEM Days Post Challenge 10ug GLB quadrivalent 2 doses 1ug GLB quadrivalent 2 doses 10ug GLB quadrivalent 1 dose Saline Full protection against morbidity from influenza challenge in mice, as evidenced by no loss of weight observed in vaccinated animals Percentage body weight change on viral challenge
Our vision is to enable the Africa, Asia, and Latin America regions to meet local demand through local production. A global mRNA vaccine manufacturing network could dramatically increase vaccine supplies, eliminate vaccine nationalism, respond quickly to variants, and offer non-pandemic RNA manufacturing for other indications. The network is planned to be distributed and interoperable, each facility will have less reliance on international supply chains to create vaccines for locally prevalent strains while being able to offer support for other facilities should need arise. GreenLight looks to deploy its proprietary RNA manufacturing process locally using modular design concepts that can constructed off-site and set up quickly in country. The facilities will be locally operated by a team of fewer than 100 staff to produce 1 billion vaccination courses per year. GreenLight’s vision to enable a global RNA manufacturing network Globally distributed units can address vaccine nationalism, adapt to variants, and offer non-pandemic advanced therapies
Ribosome Cell Nucleus Target Target cell RNA-encoded instructions Target specific vehicle Proprietary approach for integration of wild-type beta-globin gene Can edit dividing and nondividing cells Do not require viral vectors Achieves long-lasting effect Are delivered direct to the patient Can be manufactured at scale GreenLight gene therapy architecture targeting potential solutions that: Developing proof of concept for novel RNA-based approach to gene therapy Long lived expression of wild-type beta-globin gene Initial research into promising new avenue for Sickle Cell therapy with grant from the Bill & Melinda Gates Foundation
MANUFACTURING OPERATIONS Inside GreenLight’s production site for dsRNA
GreenLight’s commercial plant for agricultural RNA began operation in Q1 2021 Rochester NY-based RNA production facility currently outfitted for 500 kg output per year
Installed commercial capacity of 500 kg per year, ready for expansion to 1,000 kg per year Rochester site infrastructure supports further expansion up to 100 metric tons per year
Dynamic workforce in place, with ready access to additional skilled labor Located in the biotech-centric Eastman Business Park, home to 100+ innovative companies Scale-up expertise and next steps
IP and collaborators
Extensive and rapidly expanding IP portfolio 145+ patents and 165+ applications RNA Platform Foundational U.S. Patents 2 1 Foundational Japan Patent 61 Foundational Apps 10 Improvement Apps Process Control and Compound Production 53 Patents 9 Applications Human Health mRNA Platform App; RNA Gene Therapy App; Covid Vaccine Payload App Pipeline: Formulations, Payloads and Raw Materials Foundational Applications 2 Sugar Platform 17 Applications Pipeline: New Pathways U.S. Patents 3 RNA Crop Protection and Bee Health 72 Applications Pipeline: New Pests, Targets, and Formulations 88 Patents Engine Patents RNA Platform Patents Sugar Platform Patents
Our partners and collaborators Life Sciences Advisors Dr. Drew Weissman Univ of Pennsylvania Luc Debruyne Former President GSK Global Vaccines Dr. Mark Dybul Former Exec Dir Global Fund Dr. Ted Ashburn Pres and CEO Oncorus Robert S. Langer MIT, Institute Professor Publicly-disclosed Collaborations Major Investors Lupa Systems
Opportunity Overview
Plant health revenue – business plan ($ in millions) $489.3 Products in market 0 0 1 2 7 8 8 GLB Product Revenue R&D Collab. Revenue Platform Mfg. Revenue $0.0 $0.6 $5.2 $18.9 $119.7 $320.7 Target gross margin of 75-90%1 for 2025 and beyond 1. Target gross margin is for products GreenLight distributes directly; gross margin may differ for products GreenLight chooses to partner
Human health revenue – business plan ($ in millions) Human health revenues largely expected in the form of royalties 1. 2021 Revenue reflects grant revenue $40.0 $181.1 $211.6 $729.5 $802.1 $749.2 $1.51
Projected corporate financial metrics 2021-2025 ($ in millions) 2021E 2022E 2023E 2024E 2025E Revenue1 $2 $41 $186 $231 $849 EBITDA1 ($114) ($190) ($11) ($23) $235 Capital Expenditures $14 $71 $52 $104 $32 Working Capital Investment $0 $69 $64 $61 $51 Non-GAAP financials based on management estimates. Modeling of EBITDA primarily reflects existing programs. Additional opportunities for investment will be considered and are not fully reflected in the EBITDA estimates.
($ in millions except per share data) Share Price $10.00 Pro Forma Shares Outstanding (1) 156.4 Equity Value $1,564 Less: Net Cash from Transaction $282 Less: Existing Net Cash on Balance Sheet (2) $52 Implied Enterprise Value $1,230 Transaction Summary & Pro Forma Equity Ownership Pro Forma Valuation Illustrative Cash Sources & Uses Post Money Ownership (4) Shares outstanding and ownership at close includes 20,700,000 ENVI shares outstanding, 5,175,000 ENVI Founder shares, 120,000,000 shares issued to existing GreenLight shareholders, and approx. 10,700,000 shares issued to the PIPE investors. Assumes $52 million in cash and conversion of any convertible notes, per the Company’s draft unaudited financials as of 6/30/2021. Cash in trust assumes no redemptions in connection with the business combination. Post money equity ownership assumes no redemptions and excludes additions to the employee equity pool Key Transaction Terms Assumed a $1.2 billion enterprise valuation and gross cash proceeds of $312 million, inclusive of PIPE proceeds and cash in SPAC trust GreenLight’s current shareholders will own approximately 77% of the public company (assuming no redemptions or exercise of warrants) After transaction costs, GreenLight would have ~$300 million of cash available on the balance sheet to fund growth and its manufacturing expansion (inclusive of the Company’s existing net cash) ($ in millions) $ Seller Rollover $1,200 Estimated Cash in Trust (3) 207 PIPE Proceeds 105 Total Sources $1,512 Equity Consideration to GreenLight $1,200 Net Cash to Balance Sheet 282 Estimated Transaction Costs 30 Total Uses $1,512 PIPE Investors 10.5 million shares (6.7% ownership) GreenLight Equity 120.0 million shares (76.7% ownership) SPAC Founder Shares 5.2 million shares (3.3% ownership) SPAC Public Shares 20.7 million shares (13.2% ownership)
Anticipated use of proceeds $282M (Estimated Cash in Trust and PIPE Proceeds) Launch pipeline of pest-protection products and first animal health product into market Expand into other biological molecules (microbials, peptides, etc.) and applications Corporate Development / General Corporate Build mRNA GMP manufacturing facility Scale R&D processes, manufacturing capacity, and capabilities Buy versus make opportunities to accelerate growth and expand product/IP portfolio Public company G&A costs Human Health Advance COVID-19 and seasonal flu vaccine candidates through clinical trials Continue R&D efforts on further therapeutics Human Health Plant Health Platform & Corporate Development
GreenLight peer benchmarking Source: Company filings and FactSet as of 8/6/21. Ginkgo 2021E EV / sales reflects 2024E revenues, and 2022E EV / sales reflects 2025E revenues based on investor presentation. Moderna 2021 EV / sales reflects EV / LTM revenues. BioNTech 2021 EV / sales reflects EV / LTM revenues. Multiples reflect 8/3/21 announcement of Sanofi definitive agreement to purchase Translate Bio at $38/share CY2022E EV / Revenue Peer average: 15.6x Peer average: 31.9x CY2021E EV / Revenue Peer average: 14.4x Peer average: 8.4x Ag & Food Production Healthcare NM (1) (2) (1) (3) 61.6x (4) (4)
Ag & Food Production Healthcare ($ in millions) ($ in millions) Healthcare EV / 2024E revenue multiple: 8.4x Ag & Food EV / 2026E revenue multiple: 14.4x Healthcare implied enterprise value: $1,781 Ag & Food implied enterprise value: $4,622 $6,403 GreenLight has significant upside potential
Applies a range of 8.0x – 8.8x to GreenLight’s 2024E Human Health revenue of $212m and 13.7x – 15.1x to its 2026E Plant Health revenue of $321m to arrive at an implied future enterprise value Multiple range based off range of Healthcare EV/CY 2024E revenue trading multiple of 8.4x +/- 5% and Ag & Food Prod. EV/CY 2026E revenue trading multiple of 14.4x +/- 5% The future enterprise value is discounted 5 years back to 2021 at a 20% discount rate to arrive at an implied discounted enterprise value Summary of approach Enterprise value Future enterprise value Discounted enterprise value EV / Revenue Metric 2026E $533m(1) Implied future enterprise value Implied discounted enterprise value Enterprise value Implied EV based on comparable companies current trading valuations Illustrative transaction valuation (Discount at 5 periods: 20%) 11.4x – 12.6x 2026E Revenue 4.6x – 5.1x 2026E Revenue ~80-82% discount $2.6bn $6.4bn $6.7bn $2.7bn $1.2bn (Implied discount rate: ~40%) ($ in billions) 2.3x 2026E Revenue $6.1bn $2.4bn Source: Company filings and FactSet as of 8/6/21. (1) Reflects 2024E Human Health and 2026E Plant Health revenues. GreenLight indicative valuation
Why invest in us? 1 Cutting edge, proven technology to democratize RNA, making it available to solve problems in the world’s most important markets: Agriculture, Food Production and Health Synthetic biology platform capable of producing RNA at scale, underscoring power of manufacturing at scale with highly competitive cost structure Blue ocean opportunity representing $130bn in TAM across 18 products, many without meaningful competition Multiple product development milestones expected in the next 2 years Best-in-class management team that has previously successfully scaled and commercialized biologics 2 3 4 5
Corporate contacts page: Thomas Crampton GreenLight Biosciences SVP and Head of Corporate Affairs 200 Boston Ave Medford, Massachusetts 02155
Appendix: Additional Human Health details
Nucleotides GreenLight mRNA Human Health commercial process today Proprietary GreenLight approach consolidates key processes under single roof Modular, scalable and with reduced logistical complexity Proprietary enzyme and fermentation processes generate required essential materials, including T7 and DNA template. In-house processes for purification of mRNA and its formulation into an LNP. This approach reduces interdependencies, accelerates availability of materials, and creates advantages in terms of controlled, reliable, and fast production of doses. 3rd Party Capping ATP CTP GTP UTP or MeΨTP Fill and Finish Purification Formulation Cell-free production of mRNA Fermentation DNA Template RNA polymerase Microbial strain Purification Fermentation Microbial strain Linearization Purification
5 Kinases Polyphosphate Capping Nucleotides Purification Formulation Cell-free production of mRNA Fermentation DNA Template RNA polymerase Microbial strain Purification Fermentation Microbial strain Linearization Purification Microbial strain Fill and Finish CMP à CTP UMP à UTP GMP à GTP AMP à ATP Next generation GreenLight approach further consolidates processes Potential elements allow for additional logistical simplicity and cost reductions GreenLight mRNA Human Health manufacturing process Next Gen
GreenLight Covid vaccine has considerable potential Endemic Covid expected to drive global vaccine demand to ~$20B in 2027 Covid-19 Challenge Our Proposed Solution Only 21 doses for every 100 people have been administered worldwide Periodic booster dose may be necessary GLB-Covid-19 variant updated vaccine candidates GLB proprietary RNA vaccine manufacturing platform Covid-19 variant updated vaccine candidate Proprietary RNA manufacturing platform Our Proposed Solution Target profile advantages compared to traditional vaccine production Integrated, scalable, proprietary manufacturing platform less dependent on key raw materials supply Small production footprint to produce billions of doses of Covid-19 vaccines or annual boosters rapidly adapted to address new variants of concern Cost-competitive, especially for middle- and low-income countries
GreenLight influenza vaccine tackles significant current problems Need for greater efficacy and shorter cycle times for seasonal vaccine updates ~$3.3B market Influenza Challenge Our Proposed Solution GLB-Covid-19 variant updated vaccine candidates GLB proprietary RNA vaccine manufacturing platform Seasonal influenza vaccine candidates Proprietary RNA manufacturing platform Our Proposed Solution Target profile advantages compared to traditional vaccine production Shorter cycle time from strain selection to vaccine production due to removal of live pathogen and egg adaptation steps Greater reliability in producing vaccine formulation that matches circulating strain as exact antigen(s) is encoded Timely scalable production in case of pandemic influenza strain is possible Potential for higher efficacy with novel antigen design Mismatch between vaccine strains and circulating seasonal strains due to strain selection occurring ~6 months prior to human dosing The egg-based production process of current influenza vaccines often cause viral mutations that result in reduced efficacy Slow in a pandemic response setting due to inadequate supply of chicken eggs Typical efficacy is ~40-70%
Appendix: Summary Risk Factors
Summary Risk Factors Risks relating to the proposed business combination: GreenLight has a limited operating history, which makes it difficult to evaluate our current business and prospects and increases the risk of investment. We have a history of net losses, and we may not achieve or maintain profitability. If we do not develop and introduce new products that obtain regulatory approval and achieve market acceptance, we will not be able to generate or grow revenues. We will incur significant expenses to develop products and cannot assure you that we can achieve a return on that investment. We face significant competition and many of our competitors have substantially greater financial, technical, supply chain and other resources than we do. Our business, financial results and reputation in the marketplace may suffer upon the loss of a significant customer or partner. Our ability to bring agricultural products to market successfully depends on achieving and maintaining the price competitiveness of RNA anticipated to be produced by our RNA platform. We are subject to numerous and rapidly changing federal, state, local and international laws and regulations related to our products, and the failure to comply with any of these laws and regulations, or failure to comply with new or changed laws and regulations, could adversely affect our business and our financial condition. Information technology systems are critical to our business and interruptions, or security incidents associated with those systems could cause significant disruption to our business as well as financial and reputational harm. Loss of key personnel could delay our programs, harm our development efforts and adversely affect our business and results of operations.
Summary Risk Factors Risks relating to the proposed business combination (cont’d): The unpredictability of the spread and treatment of the SARS-CoV-2 virus and its variants could materially harm our business prospects. Intellectual property rights including patents and patent applications involve highly complex legal and factual questions, which, if determined adversely to us, could negatively impact our competitive position or ability to bring products to market or cause us to incur liabilities. We do not and will not seek to protect our intellectual property rights in all jurisdictions and we may not be able to adequately enforce our intellectual property rights in those jurisdictions where we do seek protection. The anticipated size of the addressable markets for our products may not materialize. Our projections are subject to significant assumptions and we may not achieve them and our future results could be materially different than anticipated. A material weakness in financial controls resulted from the classification of the ENVI warrants as components of equity instead of as derivative liabilities and the ENVI warrants have been reclassified as a step to remedy the material weakness. If we identify additional material weaknesses in the future or otherwise fail to maintain an effective system of internal control over financial reporting, this may result in material misstatements of our consolidated financial statements or failure to meet our periodic reporting obligations. Our results of operations and financial condition are subject to management’s accounting judgments and estimates, as well as changes in accounting policies. We will incur increased costs as a result of operating as a public company, and our management will devote substantial time to new compliance initiatives.
Summary Risk Factors Risks relating to the proposed business combination (cont’d): The consummation of the merger is subject to a number of conditions and if those conditions are not satisfied or waived, the merger agreement may be terminated in accordance with its terms and the merger may not be completed. If the Merger benefits do not meet the expectations of investors or securities analysts, the market price of ENVI’s securities or, following the consummation of the Merger, the combined company’s securities may decline. Potential legal proceedings in connection with the Merger, the outcomes of which are uncertain, could delay or prevent the completion of the Merger. If ENVI’s due diligence investigation of the Company’s business was inadequate and material risks are not uncovered, stockholders of ENVI following the Merger could lose some or all of their investment. New GreenLight’s stock price may change significantly following the merger and you could lose all or part of your investment as a result. Because there are no current plans to pay cash dividends on New GreenLight Common Stock for the foreseeable future, you may not receive any return on investment unless you sell your common stock for a price greater than that which you paid for it. Future sales, or the perception of future sales, by New GreenLight or its stockholders in the public market following the merger could cause the market price for New GreenLight Common Stock to decline. Certain of New GreenLight’s stockholders, including the Sponsor, may engage in business activities which compete with New GreenLight or otherwise conflict with New GreenLight’s interests. There is no guarantee that a ENVI public stockholder’s decision whether to redeem their shares for a pro rata portion of the Trust Account will put such stockholder in a better future economic position. Redemptions by ENVI public stockholders will result in less funding being available to New GreenLight and may cause a condition to the merger to fail.
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