Exhibit 10.9


 


 


Amendment and restatement


of


the subscription
Agreement


 


This amended and restated subscription agreement (this
“Agreement”) is dated as of September 22, 2021 (the “Effective Date”) and entered into by and between
Mana Capital Acquisition Corp. (the “Company”) and Mana Capital LLC (the “Subscriber”) (each, a
“Party” and collectively, the “Parties”), hereby amends and restate that certain Securities Subscription
Agreement entered into between the Parties as of June 22, 2021 (the “Original Agreement”) pursuant to the following
terms and conditions.


 


WHEREAS, the Company entered into the Original
Agreement pursuant to which the Company accepted the offer the Subscriber to subscribe for and purchase 1,437,500 shares of common stock
of the Company, $0.00001 par value per share, up to 187,500 shares of which were subject to complete or partial forfeiture if the underwriter
of the Company’s initial public offering (the “IPO”) of units (the “Units”) did not fully
exercise their over-allotment option (the “Over-allotment Option”); and


 


WHEREAS, the Company and Subscriber have agreed
that as a result of a change in the gross proceeds under the offering terms of the registration statement on Form S-1 (the “Registration
Statement”) and prospectus (the “Prospectus”) for the IPO of the Company’s Units and the intention
of the Company and its underwriter for the IPO to not provide for an Over-allotment Option, the Subscriber wishes to purchase an additional
62,500 shares of the Company (such that the Subscriber will have acquired an aggregate of 1,500,000 shares of common stock of the Company,
none of which Shares shall be subject to forfeiture if the Over-allotment Option is not fully exercised, and


 


WHEREAS, the Company wishes to accept the offer
of the Subscriber to purchase such additional shares of Common Stock and eliminate the forfeiture provisions of the Original Agreement;
and


 


WHEREAS, the Company and Subscriber have further
agreed and desire that the Original Agreement be replaced and superseded hereby; and


 


NOW THEREFORE, In consideration of the foregoing and
for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree to enter
into this Agreement to replace the Original Agreement in its entirety as follows: 


 




1.            Purchase of Shares.


 


The Company is pleased to accept the offer the Subscriber
has made to subscribe for and purchase an additional 62,500 shares of common stock of the Company such that the Subscriber has acquired
1,500,000 shares of common stock in the aggregate (the “Shares”). The terms (on which the Company is willing to sell
the Shares to the Subscriber, and the Company and the Subscriber’s agreements regarding such Shares, are as follows:


 


For the sum of $25,000 (the “Purchase Price”),
which the Company acknowledges as having previously been received by it, in cash, the Company hereby sells and issues the Shares to the
Subscriber, and the Subscriber hereby subscribes for and purchases the Shares from the Company, on the terms and subject to the conditions
set forth in this Agreement. Concurrently with the Subscriber’s execution of this Agreement, the Company shall, at its option, deliver
to the Subscriber a certificate registered in the Subscriber’s name representing the Shares (the “Original Certificate”)
or effect such delivery in book-entry form.


 




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2.           Representations,
Warranties and Agreements.


 


2.1         Subscriber’s
Representations, Warranties and Agreements. To induce the Company to issue the Shares to the Subscriber, the Subscriber hereby represents
and warrants to the Company and agrees with the Company as follows:


 


2.1.1      No
Government Recommendation or Approval. The Subscriber understands that no federal or state agency has passed upon or made any recommendation
or endorsement of the offering of the Shares.


 


2.1.2      No
Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Subscriber of the transactions contemplated
hereby do not violate, conflict with or constitute a default under (i) the formation and governing documents of the Subscriber, (ii) any
agreement, indenture or instrument to which the Subscriber is a party or (iii) any law, statute, rule or regulation to which the Subscriber
is subject, or any agreement, order, judgment or decree to which the Subscriber is subject.


 


2.1.3      Organization
and Authority. The Subscriber is a Delaware limited liability company, validly existing and in good standing under the laws of the
State of Delaware and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement.
Upon execution and delivery by you, this Agreement is a legal, valid and binding agreement of Subscriber, enforceable against Subscriber
in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance
or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in equity).


 


2.1.4     Experience,
Financial Capability and Suitability. Subscriber is: (i) sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Shares and (ii) able to bear the economic risk of its investment in the Shares for an indefinite period
of time because the Shares have not been registered under the Securities Act (as defined below) and therefore cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration is available. Subscriber is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its own interests. Subscriber must bear the economic risk
of this investment until the Shares are sold pursuant to: (i) an effective registration statement under the Securities Act or (ii) an
exemption from registration available with respect to such sale. Subscriber is able to bear the economic risks of an investment in the
Shares and to afford a complete loss of Subscriber’s investment in the Shares.


 


2.1.5     Access to
Information; Independent Investigation. Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask questions
of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations,
business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information
so obtained. In determining whether to make this investment, Subscriber has relied solely on Subscriber’s own knowledge and understanding
of the Company and its business based upon Subscriber’s own due diligence investigation and the information furnished pursuant to
this paragraph. Subscriber understands that no person has been authorized to give any information or to make any representations which
were not furnished pursuant to this Section 2 and Subscriber has not relied on any other representations or information in making its
investment decision, whether written or oral, relating to the Company, its operations and/or its prospects.


 


2.1.6     Private Offering.
The Subscriber represents that it is (a) an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under
the Securities Act of 1933, as amended (the “Securities Act”) or (b) not a “U.S. Person” as defined in Rule 902
of Regulation S (“Regulation S”) under the Securities Act. Subscriber acknowledges the sale contemplated hereby is being made
in reliance on a private placement exemption to “Accredited Investors” within the meaning of Section 501(a) of Regulation
D under the Securities Act or similar exemptions under state law or to a non-U.S. Person under Regulation S. Accordingly, the Shares will
be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, and therefore may not be offered,
pledged or sold by Subscriber, directly or indirectly, in the United States without registration under United States federal and state
securities laws or an exemption therefrom and Subscriber understands the certificates representing the Shares will contain a legend in
respect of such restrictions. The Subscriber did not decide to enter into the Agreement as a result of any general solicitation or general
advertising within the meaning of Rule 502 under the Securities Act or as a result of any “directed selling efforts” within
the meaning of Rule 902 under Regulation S.


 


 






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2.1.7      Investment
Purposes. The Subscriber is purchasing the Shares solely for investment purposes, for the Subscriber’s own account and not for
the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof. The Subscriber did
not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502
under the Securities Act.


 


2.1.8      Restrictions
on Transfer; Shell Company. The Subscriber understands the Shares are being offered in a transaction not involving a public offering
within the meaning of the Securities Act. The Shares have not been registered under the Securities Act, and, if in the future the Subscriber
decides to offer, resell, pledge or otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred
only (A) in accordance with the provisions of Regulation S (Rule 901 through 905), (B) pursuant to a registration under the Securities
Act, or (C) pursuant to an available exemption from registration. Subscriber agrees that if any transfer of its Shares or any interest
therein is proposed to be made, as a condition precedent to any such transfer, Subscriber may be required to deliver to the Company an
opinion of counsel satisfactory to the Company. Absent registration or an exemption, the Subscriber agrees not to resell the Shares. Subscriber
further acknowledges that because the Company is a shell company and Rule 144 may not be available to the Subscriber for the resale of
the Shares until one year following the consummation of a business combination despite technical compliance with the requirements of Rule
144 and the release or waiver of any contractual transfer restrictions.


 


2.1.9     No Governmental
Consents. No governmental, administrative or other third-party consents or approvals are required, necessary or appropriate on the
part of Subscriber in connection with the transactions contemplated by this Agreement.


 


2.2          Company’s
Representations, Warranties and Agreements. To induce the Subscriber to purchase the Shares, the Company hereby represents and warrants
to the Subscriber and agrees with the Subscriber as follows:


 


2.2.1     Organization
and Corporate Power. The Company is a Delaware corporation and is qualified to do business in every jurisdiction in which the failure
to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of
the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by
this Agreement.


 


2.2.2      No
Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated
hereby do not violate, conflict with or constitute a default under (i) the Certificate of Incorporation or By-laws of the Company, (ii)
any agreement, indenture or instrument to which the Company is a party or (iii) any law, statute, rule or regulation to which the Company
is subject, or any agreement, order, judgment or decree to which the Company is subject.


 


2.2.3     Title
to Shares. Upon issuance in accordance with, and payment pursuant to, the terms hereof, and registration on the register of members
of the Company, the Shares will be duly and validly issued, fully paid and nonassessable. Upon issuance in accordance with, and payment
pursuant to, the terms hereof the Subscriber will have or receive good title to the Shares, free and clear of all liens, claims and encumbrances
of any kind, other than (a) transfer restrictions hereunder and under the other agreements to which the Shares may be subject, (b) transfer
restrictions under federal and state securities laws, and (c) liens, claims or encumbrances imposed due to the actions of the Subscriber.


 


2.2.4      No
Adverse Actions. There are no actions, suits, investigations or proceedings pending, threatened against or affecting the Company which:
(i) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by this Agreement or (ii)
question the validity or legality of any transactions or seeks to recover damages or to obtain other relief in connection with any transactions.


 


3.            The
Parties hereby agree that Section 3 of the Original Agreement shall be deleted in the entirety.


 


 






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4.            Waiver
of Liquidation Distributions; Redemption Rights.


 


In connection with the Shares purchased pursuant to
this Agreement, the Subscriber hereby waives any and all right, title, interest or claim of any kind in or to any distributions by the
Company from the trust account which will be established for the benefit of the Company’s public shareholders and into which substantially
all of the proceeds of the IPO will be deposited (the “Trust Account”), in the event of a liquidation of the Company upon
the Company’s failure to timely complete an initial business combination. For purposes of clarity, in the event the Subscriber purchases
securities in the IPO or in the aftermarket, any Common Shares so purchased shall be eligible to receive any liquidating distributions
by the Company. However, in no event will the Subscriber have the right to redeem any Common Shares held by it into funds held in the
Trust Account upon the successful completion of an initial business combination.


 


5.            Restrictions
on Transfer.


 


5.1          Securities
Law Restrictions. In addition to any restrictions to be contained in that certain letter agreement (commonly known as an “Insider
Letter”) dated on or prior to the closing of the IPO by and between Subscriber and the Company, Subscriber agrees not to sell,
transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior thereto (a) a registration statement
on the appropriate form under the Securities Act and applicable state securities laws with respect to the Shares proposed to be transferred
shall then be effective or (b) the Company has received an opinion from counsel reasonably satisfactory to the Company, that such registration
is not required because such transaction is exempt from registration under the Securities Act and the rules promulgated by the Securities
and Exchange Commission thereunder and with all applicable state securities laws.


 


5.2         Lock-up.
Subscriber acknowledges that the Shares will be subject to lock-up provisions (the “Lock-up”) contained in the Insider
Letter. Pursuant to the Insider Letter, Subscriber will agree (subject to certain exceptions) not to sell, transfer, pledge, hypothecate
or otherwise dispose of any of the Shares until the earlier to occur of: (A) six months after the completion of the Company’s initial
business combination or (B) the date on which the closing price of the Common Shares equals or exceeds $12.00
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 after the Company’s initial business combination. Notwithstanding the foregoing, the aforesaid restrictions
shall lapse if, subsequent to the consummation of the Company’s initial business combination, the Company consummates a subsequent
liquidation, merger, stock exchange or other similar transaction which results in all of the Company’s shareholders having the right
to exchange their Common Shares for cash, securities or other property.


 


5.3          Restrictive
Legends. All certificates representing the Shares shall have endorsed thereon legends substantially as follows:


 


“THESE SECURITIES (i) HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THESE SECURITIES MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT, (B) TO A NON-U.S.
PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE
RESALE LIMITATIONS SET FORTH IN RULE 905 OF REGULATIONS S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. HEDGING
TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”


 


 






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“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A LOCKUP AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP.”


 


5.4          Additional
Shares or Substituted Securities. In the event of the declaration of a share dividend, the declaration of an extraordinary dividend
payable in a form other than Shares, a spin-off, a share split, an adjustment in conversion ratio, a recapitalization or a similar transaction
affecting the Company’s outstanding Common Shares without receipt of consideration, any new, substituted or additional securities
or other property which are by reason of such transaction distributed with respect to any Shares subject to this Section 5 or into which
such Shares thereby become convertible shall immediately be subject to this Section 5 . Appropriate adjustments to reflect the distribution
of such securities or property shall be made to the number of Common Shares subject to this Section 5.


 


5.5          Registration
Rights. Subscriber acknowledges that the Shares are being purchased pursuant to an exemption from the registration requirements of
the Securities Act and will become freely tradable only after certain conditions are met or they are registered pursuant to a registration
rights agreement to be entered into with the Company prior to the closing of the IPO (the “Registration Rights Agreement”).


 


6.            Other
Agreements.


 


6.1          Further
Assurances. Subscriber agrees to execute such further instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.


 


6.2          Notices.
All notices, statements or other documents which are required or contemplated by this Agreement shall be: (i) in writing and delivered
personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the
address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number
as may be designated in writing by such party and (iii) by electronic mail, to the electronic mail address most recently provided to such
party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted
shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation,
if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days
after mailing if sent by mail.


 


6.3           Entire
Agreement. This Agreement, together with that certain Insider Letter to be entered into between Subscriber and the Company and the
Registration Rights Agreement, each substantially in the form to be filed as an exhibit to the Registration Statement, embodies the entire
agreement and understanding between the Subscriber and the Company with respect to the subject matter hereof and supersedes all prior
oral or written agreements and understandings relating to the subject matter hereof.


 


6.4          Modifications
and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties
hereto.


 


6.5         Waivers
and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such


terms or provisions. No such waiver or consent shall be deemed to be or
shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such
waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute
a continuing waiver or consent.


 


6.6          Assignment.
The rights and obligations under this Agreement may not be assigned by either party hereto without the prior written consent of the other
party.


 


6.7          Benefit.
All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall
inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed
to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary
of this Agreement.


 


 






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6.8         
Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and
governed by the laws of the State of New York applicable to contracts wholly performed within the borders of such state, without giving
effect to the conflict of law principles thereof.


 


6.9          Severability.
In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement
shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems
it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such
provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force
and effect.


 


6.10       No Waiver
of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement,
and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single
or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps
to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle
the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver
of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.


 


6.11         Survival
of Representations and Warranties. All representations and warranties made by the parties hereto in this Agreement or in any other
agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations
made by or on behalf of the parties.


 


6.12         No
Broker or Finder. Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant
has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability
on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other
compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party
and to bear the cost of legal expenses incurred in defending against any such claim.


 


6.13         Headings
and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or provisions hereof.


 


6.14         Counterparts.
This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that
both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form
of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such signature page were an original thereof.


 


6.15        Construction.
The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent
or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of
proof will arise favoring or disfavoring any party hereto because of the authorship of any provision of this Agreement. The words “include,”
“includes,” and “including” will be deemed to be followed by “without limitation.”
Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will
be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,”
“herein,” “hereof,” “hereby,” “hereunder,” and words of similar
import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend
that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached
any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty
or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached
will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.


 


 






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6.16        Mutual
Drafting. This Agreement is the joint product of the Subscriber and the Company and each provision hereof has been subject to the
mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.


 


7.            Voting
and Tender of Shares.


 


Subscriber agrees to vote the Shares in favor of an
initial business combination that the Company negotiates and submits for approval to the Company’s shareholders and shall not seek
redemption with respect to any of the Shares. Additionally, the Subscriber agrees not to tender any Shares in connection with a tender
offer presented to the Company’s shareholders in connection with an initial business combination negotiated by the Company.


 


8.            Indemnification.


 


Each party shall indemnify the other against any loss,
cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation,
warranty, covenant or agreement in this Agreement.


 


 


 


[Signature Page Follows]


 


 




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If the foregoing accurately sets forth our understanding
and agreement, please sign the enclosed copy of the Agreement and return it to us.


 


	 	Very truly yours,
	 	 
	 	Mana Capital Acquisition Corporation






	 	 
	 	By:	 /s/ Jonathan Intrater	 
	 	 	Name:  Jonathan Intrater
	 	 	Title:  CEO
	 	 
	 	Accepted and agreed as of the date first set forth above
	 	 
	 	Mana Capital LLC






	 	 
	 	By:	 /s/ Tong Mao	 
	 	 	Name:  Tong Mao
	 	 	Title:  Representative of the Managing Member


 


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