Exhibit 10.4


 


FORM OF


AMENDED AND RESTATED


REGISTRATION RIGHTS AGREEMENT


 


THIS
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of November 10,
2021, is made and entered into by and among Embark Technology, Inc., a Delaware corporation (the “Company”)
(formerly known as Northern Genesis Acquisition Corp. II), a Delaware corporation, Northern Genesis Sponsor II LLC, a Delaware limited
liability company (“Sponsor” and, together with its Permitted Transferees, the “Sponsor Holders”),
certain former stockholders of Embark Trucks Inc. (“Embark”) identified on the signature pages hereto,
including the Founders (as defined below) (such stockholders, together with their respective Permitted Transferees, the “Embark
Holders” and, collectively with the Sponsor Holders, and any person or entity who hereafter becomes a party to this Agreement
pursuant to Section 5.10 of this Agreement, the “Holders” and each, a “Holder”),
and solely for purposes of Section 5.12 hereof, Northern Genesis Capital II LLC, a Delaware limited liability company (“NG
Capital”).


 


RECITALS


 


WHEREAS,
the Company, the Sponsor and NG Capital are party to that certain Registration Rights Agreement, dated as of January 12, 2021 (the
 “Original RRA”);


 


WHEREAS,
the Company has entered into that certain Agreement and Plan of Merger, dated as of June 22, 2021 (as amended or supplemented from
time to time prior to the date hereof, the “Merger Agreement”), by and among the Company, NGAB Merger Sub Inc.,
a Delaware corporation and a direct wholly owned subsidiary of the Company, and Embark;


 


WHEREAS,
on the date hereof, pursuant to the Merger Agreement, the Embark Holders received shares of Class A common stock, par value $0.0001
per share, and Class B common stock, par value $0.0001 per share, of the Company (collectively, the “Common Stock”);


 


WHEREAS,
on the date hereof, certain other investors (such other investors, collectively, the “Third Party Investor Stockholders”)
purchased an aggregate of 4,000,000 shares of Common Stock and 666,667 warrants to purchase shares of Common Stock (collectively, the
 “Investor Securities”) in a transaction exempt from registration under the Securities Act pursuant to an Amended
and Restated Forward Purchase Agreement between the Company and such Third Party Investor Stockholder (including by joinder thereto),
dated as of April 21, 2021 (each, a “Forward Purchase Agreement”), and/or the respective Subscription
Agreement, each dated as of June 22, 2021, entered into by and between the Company and such Third Party Investor Stockholder (each
of the foregoing, including such Forward Purchase Agreements, a “Subscription Agreement” and, collectively,
the “Subscription Agreements”);


 


WHEREAS,
pursuant to Section 6.6 of the Original RRA any amendment to the Original RRA is effective as to the Parties thereto only to the
extent executed in writing by such Parties and each party to the Original RRA is a party to this Agreement; and


 






     


     


    




 


WHEREAS,
the Company and the Sponsor desire to amend and restate the Original RRA in its entirety and enter into this Agreement, pursuant to which
the Company shall grant the Holders certain registration rights with respect to the Registrable Securities (as defined below) on the
terms and conditions set forth in this Agreement, and NG Capital desires to consent to the foregoing and to be removed as a party hereto.


 


NOW, THEREFORE,
in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:


 


Article I

DEFINITIONS


 


1.1           Definitions.
The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:


 


“Additional Holder”
shall have the meaning given in Section 5.10.


 


“Additional Holder Common Stock”
shall have the meaning given in Section 5.10.


 


“Adverse Disclosure”
shall mean any public disclosure of material non-public information, which disclosure, after consultation with counsel to the Company,
in the good faith judgment of the Chief Executive Officer or the Chief Financial Officer of the Company (i) would be required to
be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any
untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case
of any Prospectus and any preliminary Prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would
not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may
be, 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 hereto.


 


“Block Trade” shall
have the meaning given in Section 2.4.1.


 


“Board” shall mean
the Board of Directors of the Company.


 


“Bylaws” shall mean
the bylaws of the Company, as the same may be amended and/or restated from time to time.


 


“Closing” shall have
the meaning given in the Merger Agreement.


 


“Closing Date” shall
have the meaning given in the Merger Agreement.


 


“Commission” shall
mean the U.S. Securities and Exchange Commission.


 


“Common Stock” shall
have the meaning given in the Recitals hereto.


 



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“Company” shall have
the meaning given in the Preamble hereto and includes the Company’s successors by recapitalization, merger, consolidation, spin-off,
reorganization or similar transaction.


 


“Demanding Holders”
shall have the meaning given in Section 2.1.4.


 


“Embark Holders” shall
have the meaning given in the Preamble hereto.


 


“Exchange Act” shall
mean the U.S. Securities Exchange Act of 1934, as it may be amended from time to time.


 


“Form S-1 Shelf”
shall have the meaning given in Section 2.1.1.


 


“Form S-3 Shelf”
shall have the meaning given in Section 2.1.1.


 


“Founders” shall mean
Alex Rodrigues and Brandon Moak and any Permitted Trust (as defined in the Acquiror Second A&R Charter) of either Person.


 


“Holder Information”
shall have the meaning given in Section 4.1.2.


 


“Holders” shall have
the meaning given in the Preamble hereto, for so long as such person or entity holds any Registrable Securities.


 


“Investor Securities”
shall have the meaning given in the Recitals hereto.


 


“Joinder” shall have
the meaning given in Section 5.10.


 


“Lock-up Period” shall
mean (a) with respect to the Sponsor Holders, the Lock-up Period as defined in that certain Sponsor Support Agreement, dated as
of June 22, 2021, by and among the Company, the Sponsor and the other parties thereto (the “Sponsor Support Agreement”),
and (b) with respect to the Embark Holders, the Lock-up Period as defined in the Bylaws.


 


“Maximum Number of Securities”
shall have the meaning given in Section 2.1.5.


 


“Merger Agreement”
shall have the meaning given in the Recitals hereto.


 


“Minimum Takedown Threshold”
shall have the meaning given in Section 2.1.4.


 


“Misstatement” shall
mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement
or Prospectus or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light
of the circumstances under which they were made) not misleading.


 


“Original RRA” shall
have the meaning given in the Recitals hereto.


 


“Other Coordinated Offering”
shall have the meaning given in Section 2.4.1.


 



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“Permitted Transferees”
shall mean (a) with respect to the Sponsor and its respective Permitted Transferees, (i) prior to the expiration of the Lock-up
Period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities prior to the expiration of the
Lock-up Period pursuant Section 2.2 of the Sponsor Support Agreement and (ii) after the expiration of the Lock-up Period, any
person or entity, except to the extent that any applicable agreement between such Holder and the Company prohibits such transfer; (b) with
respect to the Embark Holders and their respective Permitted Transferees, (i) prior to the expiration of the Lock-up Period, any
person or entity to whom such Holder is permitted to transfer such Registrable Securities prior to the expiration of the Lock-up Period
pursuant to Section 7.12 of the Bylaws of the Company and (ii) after the expiration of the Lock-up Period, any person or entity,
except to the extent that any applicable agreement between such Holder and the Company prohibits such transfer; and (d) with respect
to all other Holders and their respective Permitted Transferees, any person or entity, except to the extent that any applicable agreement
between such Holder and the Company prohibits such transfer.


 


“Piggyback Registration”
shall have the meaning given in Section 2.2.1.


 


“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 materials incorporated by reference in such prospectus.


 


“Registrable Security”
shall mean (a) any outstanding shares of Common Stock or any other equity security (including warrants to purchase shares of Common
Stock, and shares of Common Stock issued or issuable upon the exercise of any such warrant or other equity security) of the Company held
by a Holder immediately following the Closing; (b) any outstanding shares of Common Stock or any other equity security (including
warrants to purchase shares of Common Stock and shares of Common Stock issued or issuable upon the exercise of any such warrant or other
equity security) of the Company acquired by a Holder following the date hereof to the extent that such securities are “restricted
securities” (as defined in Rule 144) or are otherwise held by an “affiliate” (as defined in Rule 144) of
the Company; (c) any Additional Holder Common Stock; and (d) any other equity security of the Company or any of its subsidiaries
issued or issuable with respect to any securities referenced in clause (a), (b) or (c) above by way of a stock dividend or
stock split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; provided,
however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest
to occur of: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities
Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement by
the applicable Holder; (B) (i) such securities shall have been otherwise transferred, (ii) new certificates for such securities
not bearing (or book entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company or
(iii) subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities
shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Section 4(a)(1) of
the Securities Act or Rule 144 or Rule 145 promulgated under the Securities Act (or any successor rule promulgated thereafter
by the Commission) (but with no volume or other restrictions or limitations including as to manner or timing of sale); and (E) such
securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.


 



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“Registration” shall
mean a registration, including any related Shelf Takedown, 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.


 


“Registration Expenses”
shall mean the documented out-of-pocket expenses of a Registration, including, without limitation, the following:


 


(A)          all
registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.
and any national securities exchange on which the Common Stock is then listed);


 


(B)           fees
and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of outside counsel for the Underwriters
in connection with blue sky qualifications of Registrable Securities);


 


(C)           printing,
messenger, telephone and delivery expenses;


 


(D)          reasonable
fees and disbursements of counsel for the Company;


 


(E)           reasonable
fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such
Registration; and


 


(F)           in
an Underwritten Offering or Other Coordinated Offering, reasonable and documented fees and expenses not to exceed $30,000 in the aggregate
for each Registration of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders with the approval of
the Company, which approval shall not be unreasonably withheld.


 


“Registration Statement”
shall mean any registration statement that covers 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 materials incorporated by reference in such registration statement.


 


“Securities Act” shall
mean the U.S. Securities Act of 1933, as amended from time to time.


 


“Shelf” shall mean
the Form S-1 Shelf, the Form S-3 Shelf or any Subsequent Shelf Registration Statement, as the case may be.


 


“Shelf Registration”
shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant
to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).


 


“Shelf Takedown” shall
mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.


 


“Sponsor” shall have
the meaning given in the Preamble hereto.


 



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“Subsequent Shelf Registration Statement”
shall have the meaning given in Section 2.1.2.


 


“Transfer” shall mean
the (a) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase
or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position
or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with
respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in
cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).


 


“Underwriter” shall
mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s
market-making activities.


 


“Underwritten 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.


 


“Underwritten Shelf Takedown”
shall have the meaning given in Section 2.1.4.


 


“Withdrawal Notice”
shall have the meaning given in Section 2.1.6.


 


Article II

REGISTRATIONS and Offerings


 


2.1           Shelf
Registration.


 


2.1.1        Filing.
Within thirty (30) calendar days following the Closing Date, the Company shall submit to or file with the Commission a Registration Statement
for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or a Registration Statement for a Shelf
Registration on Form S-3 (the “Form S-3 Shelf”), if the Company is then eligible to use a Form S-3
Shelf, in each case, covering the resale of all the Registrable Securities (determined as of two (2) business days prior to such
submission or filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf declared
effective as soon as practicable after the filing thereof, but no later than the earlier of (a) the ninetieth (90th) calendar day
following the filing date thereof if the Commission notifies the Company that it will “review” the Registration Statement
and (b) the tenth (10th) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the
Commission that the Registration Statement will not be “reviewed” or will not be subject to further review. Such Shelf shall
provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available
to, and requested by, any Holder named therein. The Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare
and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf
continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and
in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. In the event
the Company files a Form S-1 Shelf, the Company shall use its commercially reasonable efforts to convert the Form S-1 Shelf
(and any Subsequent Shelf Registration Statement) to a Form S-3 Shelf as soon as practicable after the Company is eligible to use
Form S-3. The Company’s obligation under this Section 2.1.1, shall, for the avoidance of doubt, be subject to
Section 3.4.


 



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2.1.2        Subsequent
Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities
are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to as promptly
as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including using its commercially reasonable
efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable
efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any
order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent
Shelf Registration Statement”) registering the resale of all Registrable Securities (determined as of two (2) business
days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named
therein. If a Subsequent Shelf Registration Statement is filed, the Company shall use its commercially reasonable efforts to (i) cause
such Subsequent Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after
the filing thereof (it being agreed that the Subsequent Shelf Registration Statement shall be an automatic shelf registration statement
(as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405
promulgated under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent
Shelf Registration Statement continuously effective, available for use to permit the Holders named therein to sell their Registrable
Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable
Securities. Any such Subsequent Shelf Registration Statement shall be on Form S-3 to the extent that the Company is eligible to
use such form. Otherwise, such Subsequent Shelf Registration Statement shall be on another appropriate form. The Company’s obligation
under this Section 2.1.2, shall, for the avoidance of doubt, be subject to Section 3.4.


 


2.1.3        Additional
Registrable Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not
registered for resale on a delayed or continuous basis, the Company, upon written request of a Sponsor Holder or an Embark Holder, shall
promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s
option, any then available Shelf (including by means of a post-effective amendment) or by filing a Subsequent Shelf Registration Statement
and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration Statement
shall be subject to the terms hereof; provided, however, that the Company shall only be required to cause such Registrable
Securities to be so covered (i) twice per calendar year for the Sponsor Holders, collectively, and (ii) twice per calendar
year for the Embark Holders, collectively.


 



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2.1.4        Requests
for Underwritten Shelf Takedowns. Subject to Section 3.4, following the expiration of the Lock-Up Period, at any time
and from time to time when an effective Shelf is on file with the Commission, any one or more Holders (each, a “Demanding
Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering that is registered
pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only
be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the
Demanding Holder, either individually or together with other Demanding Holders, with an anticipated aggregate offering price, net of
underwriting discounts and commissions, of at least $100 million (the “Minimum Takedown Threshold”). All requests
for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of
Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Subject to Section 2.4.4, the Company shall
have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment
banks), subject to the initial Demanding Holder’s prior approval (which shall not be unreasonably withheld, conditioned or delayed).
The Sponsor Holders, collectively, may demand not more than two (2) Underwritten Shelf Takedowns and the Embark Holders, collectively,
may demand not more than three (3) Underwritten Shelf Takedowns, in each case, pursuant to this Section 2.1.4 in any
twelve (12) month period. Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Offering
pursuant to any then effective Registration Statement, including a Form S-3, that is then available for such offering.


 


2.1.5        Reduction
of Underwritten Offering. If the underwriter in an Underwritten Shelf Takedown advises the Demanding Holders in writing that marketing
factors require a limitation of the number of shares to be underwritten, then the Demanding Holders shall so advise all Holders of Registrable
Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be included
in the underwriting (such maximum number of such securities, the “Maximum Number of Securities”) shall be allocated
among all participating Holders thereof, including the Demanding Holders, in proportion (as nearly as practicable) to the amount of Registrable
Securities of the Company owned by each participating Holder; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the
underwriting.


 


2.1.6        Withdrawal.
Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten
Shelf Takedown, a majority-in-interest of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw
from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”)
to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Underwritten Shelf Takedown; provided
that one or more remaining participating Holders may elect to have the Company continue an Underwritten Shelf Takedown if the Minimum
Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by such
participating Holders, as applicable. If withdrawn, a demand for an Underwritten Shelf Takedown shall constitute a demand for an Underwritten
Shelf Takedown by the withdrawing Demanding Holder for purposes of Section 2.1.4, unless either (i) such Demanding Holder
has not previously withdrawn any Underwritten Shelf Takedown or (ii) such Demanding Holder reimburses the Company for all Registration
Expenses with respect to such Underwritten Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such
Registration Expenses based on the respective number of Registrable Securities that each Demanding Holder has requested be included in
such Underwritten Shelf Takedown); provided that, if one or more participating Holders elect to continue an Underwritten Shelf
Takedown pursuant to the proviso in the immediately preceding sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten
Shelf Takedown demanded by such participating Holders for purposes of Section 2.1.4. Following the receipt of any Withdrawal
Notice, the Company shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Shelf
Takedown. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses
incurred in connection with a Shelf Takedown prior to its withdrawal under this Section 2.1.6, other than if a Demanding
Holder elects to pay such Registration Expenses pursuant to clause (ii) of the second sentence of this Section 2.1.6.


 



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2.2           Piggyback
Registration.


 


2.2.1        Piggyback
Rights. Subject to Section 2.4.3 and the terms of any lock-up contained in the Sponsor Support Agreement and/or the Bylaws,
if the Company or any Holder proposes to conduct a registered offering of, or if the Company proposes to file a Registration Statement
under the Securities Act with respect to the Registration 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 security holders of the Company (or by the Company
and by any security holders of the Company including, without limitation, an Underwritten Shelf Takedown pursuant to Section 2.1),
other than a Registration Statement (or any registered offering with respect thereto) (i) filed in connection with any employee
stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing
security holders, (iii) pursuant to a Registration Statement on Form S-4 (or similar form that relates to a transaction subject
to Rule 145 under the Securities Act or any successor rule thereto), (iv) for an offering of debt (other than warrants)
that is convertible into equity securities of the Company, (v) for a dividend reinvestment plan or (vi) filed to register equity
securities issued in connection with the Subscription Agreements, then the Company shall give written notice of such proposed offering
to all of the Applicable Holders as soon as practicable but not less than ten (10) days before the anticipated filing date of such
Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring”
prospectus or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type of securities
to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters,
if any, in such offering, and (B) offer to all of the Applicable Holders of Registrable Securities the opportunity to include in
such registered offering such number of Registrable Securities as such Applicable Holders may request in writing within five (5) days
after receipt of such written notice (such registered offering, a “Piggyback Registration”). As used herein,
 “Applicable Holder” means any Holder of Registrable Securities that are not subject to an applicable Lock-up
Period as of the effectiveness of the applicable Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf
Registration, the final prospectus or prospectus supplement for such offering. Subject to Section 2.2.2, the Company shall
cause such Registrable Securities to be included in such Piggyback Registration and, if applicable, shall use its commercially reasonable
efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit the Registrable Securities requested
by the Applicable Holders pursuant to this Section 2.2.1 to be included therein on the same terms and conditions as any similar
securities of the Company included in such registered offering and to permit the sale or other disposition of such Registrable Securities
in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in
a Piggyback Registration shall be subject to such Holder agreement to enter into an underwriting agreement in customary form with the
Underwriter(s) selected for such Underwritten Offering by the Company.


 



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2.2.2        Reduction
of Piggyback Registration. If the total amount of securities, including Registrable Securities, requested by holders of Registrable
Securities to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine
in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will
not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling security holders
according to the total amount of securities entitled to be included therein owned by each selling security holder or in such other proportions
as shall mutually be agreed to by such selling security holders). For purposes of the preceding parenthetical concerning apportionment,
for any selling security holder which is a holder of Registrable Securities and which is a partnership or corporation, the partners,
retired partners and holders of capital stock of such holder, or the estates and family members of any such partners and retired partners
and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling security holder,”
and any pro-rata reduction with respect to such “selling security holder” shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in such “selling security holder,” as defined
in this sentence.


 


2.2.3        Piggyback
Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten
Shelf Takedown, and related obligations, shall be governed by Section 2.1.6) 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, in the case of a Piggyback Registration pursuant to a Shelf Registration,
the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration
used for marketing such transaction. The Company (whether on its own good faith determination or as the result of a request for withdrawal
by persons or entities pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission
in connection with a Piggyback Registration (which, in no circumstance, shall include a Shelf) at any time prior to the effectiveness
of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.1.6), the
Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal
under this Section 2.2.3.


 


2.2.4        Unlimited
Piggyback Registration Rights. For purposes of clarity, subject to Section 2.1.6, any Piggyback Registration effected
pursuant to Section 2.2 hereof shall not be counted as a demand for an Underwritten Shelf Takedown under Section 2.1.4
hereof.


 



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2.3           Market
Stand-off. In connection with any Underwritten Offering of equity securities of the Company (other than a Block Trade or Other Coordinated
Offering), if requested by the managing Underwriters, each Holder that is an executive officer, director or Holder in excess of five
percent (5%) of the outstanding Common Stock (and for which it is customary for such a Holder to agree to a lock-up) agrees that it shall
not Transfer any shares of Common Stock or other equity securities of the Company (other than those included in such offering pursuant
to this Agreement), without the prior written consent of the Company, during the ninety (90)-day period (or such shorter time agreed
to by the managing Underwriters) beginning on the date of pricing of such offering, except to a Related Holder (as defined in Section 7.12
of the Bylaws) or as expressly otherwise permitted by such lock-up agreement or in the event the managing Underwriters otherwise agree
by written consent. Each such Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in
each case on substantially the same terms and conditions as all such Holders).


 


2.4           Block
Trades; Other Coordinated Offerings.


 


2.4.1        Notwithstanding
any other provision of this Article II, but subject to Section 3.4, at any time and from time to time when an
effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten block trade or similar
transaction or other transaction with a two (2)-day or less marketing period (a “Block Trade”) or (b) an
 “at the market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal,
(an “Other Coordinated Offering”), in each case, with an anticipated aggregate offering price of, either (x) at
least $50 million or (y) all remaining Registrable Securities held by the Demanding Holder, then such Demanding Holder only needs
to notify the Company of the Block Trade or Other Coordinated Offering at least five (5) business days prior to the day such offering
is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block Trade
or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable Securities wishing
to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the Company and any
Underwriters, brokers, sales agents or placement agents prior to making such request in order to facilitate preparation of the registration
statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering.


 


2.4.2        Prior
to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade or
Other Coordinated Offering, a majority-in-interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering
shall have the right to submit a Withdrawal Notice to the Company, the Underwriter or Underwriters (if any) and any brokers, sale agents
or placement agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated Offering. Notwithstanding anything
to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block
Trade or Other Coordinated Offering prior to its withdrawal under this Section 2.4.2.


 


2.4.3        Notwithstanding
anything to the contrary in this Agreement, Section 2.2 shall not apply to a Block Trade or Other Coordinated Offering initiated
by a Demanding Holder pursuant to this Agreement.


 


2.4.4        The Demanding Holder in a Block Trade or
Other Coordinated Offering shall have the right to select the Underwriters and any brokers, sale agents or placement agents (if any)
for such Block Trade or Other Coordinated Offering (in each case, which shall consist of one or more reputable nationally recognized
investment banks).


 



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2.4.5 A Holder in the aggregate may demand no
more than two (2) Block Trades or Other Coordinated Offerings pursuant to this Section 2.4 in any twelve (12) month
period. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this Section 2.4 shall
not be counted as a demand for an Underwritten Shelf Takedown pursuant to Section 2.1.4 hereof.


 


Article III

COMPANY PROCEDURES


 


3.1           General
Procedures. In connection with any Shelf and/or Shelf Takedown, 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
including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing
of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members,
securityholders or partners), and pursuant thereto the Company shall:


 


3.1.1        prepare
and file with the Commission 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 ceased to be Registrable Securities;


 


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 any Holder that holds at least five percent (5%) of the Registrable Securities registered
on such Registration Statement (including warrants on an as-exercised basis) or any Underwriter of Registrable Securities or as may be
required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or
rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration
Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the
Prospectus;


 


3.1.3        prior
to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters,
if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such
Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including
each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such
Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities
owned by such Holders;


 



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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 any Holder of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution)
may reasonably request (or provide evidence that the Registrable Securities are exempt from such registration or qualification) 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 reasonably 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 to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then
otherwise so subject;


 


3.1.5        take
all actions necessary to cause all such Registrable Securities to be listed on each national securities exchange 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;


 


3.1.8        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 (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the
Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable
in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of
such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated
by reference therein);


 


3.1.9        notify
the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act,
of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes
a Misstatement, and then to correct such Misstatement as set forth in Section 3.4;


 


3.1.10      in
the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent
pursuant to such Registration, permit a representative of the Holders, the Underwriters or other financial institutions facilitating
such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney,
consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s or entity’s own expense,
in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information
reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection
with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality
arrangements in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;


 



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3.1.11      obtain
a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten
Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration
(subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by the Company’s
independent registered public accountants and the Company’s counsel) in customary form and covering such matters of the type customarily
covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest
of the participating Holders;


 


3.1.12      in
the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent
pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an
opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders,
the broker, placement agents or sales agent, if any and the Underwriters, if any, covering such legal matters with respect to the Registration
in respect of which such opinion is being given as the participating Holders, broker, placement agent, sales agent or Underwriter may
reasonably request and as are customarily included in such opinions and negative assurance letters;


 


3.1.13      in
the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent
pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in
usual and customary form, with the managing Underwriter or the broker, placement agent or sales agent of such offering or sale;


 


3.1.14      make
available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12)
months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement
which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then
in effect), and which requirement will be deemed to be satisfied if the Company timely files the information required by Forms 10-Q,
10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;


 


3.1.15      with
respect to an Underwritten Offering pursuant to Section 2.1.4, 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 in such Underwritten Offering; and


 


3.1.16      otherwise,
in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders,
consistent with the terms of this Agreement, in connection with such Registration.


 



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Notwithstanding the foregoing, the Company shall
not be required to provide any documents or information to an Underwriter or broker, sales agent or placement agent if such Underwriter
or broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other offering
involving a registration as an Underwriter or broker, sales agent or placement agent, as applicable.


 


3.2           Registration
Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the
Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions
and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,”
all fees and expenses of any legal counsel representing the Holders.


 


3.3           Requirements
for Participation in Underwritten Offerings. Notwithstanding anything in this Agreement to the contrary, if any Holder does not timely
provide the Company with its requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the
applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary
to effect the registration and such Holder continues thereafter to withhold such information. No person or entity party to this Agreement
may participate in any Underwritten Offering or other offering for equity securities of the Company pursuant to a Registration initiated
by the Company hereunder unless such person or entity (i) agrees to sell such person’s or entity’s securities on the
basis provided in any underwriting, sales, distribution or placement arrangements approved by the Company and (ii) timely completes
and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting or other agreements and
other customary documents as may be reasonably required under the terms of such underwriting, sales, distribution or placement arrangements.
The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the registration
of the other Registrable Securities to be included in such Registration.


 


3.4           Suspension
of Sales; Adverse Disclosure; Restrictions on Registration Rights.


 


3.4.1        Upon
receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall
forthwith discontinue disposition of Registrable Securities until he, she or it has received copies of a supplemented or amended Prospectus
correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as
soon as practicable after the time of such notice), or until he, she or it is advised in writing by the Company that the use of the Prospectus
may be resumed.


 


3.4.2        If
the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require
the Company to make an Adverse Disclosure or (b) require the inclusion in such Registration Statement of financial statements that
are unavailable to the Company for reasons beyond the Company’s control, the Company shall have the right, upon giving prompt written
notice of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension),
delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined
in good faith by the Company to be necessary for such purpose; provided, however, that the Company may not delay or suspend
the Registration Statement on more than three occasions or for more than ninety (90) consecutive calendar days, or more than ninety (90)
total calendar days, in each case during any twelve-month period. In the event the Company exercises its rights under this Section 3.4.2,
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 until such Holder receives written notice from the
Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice
and its contents.


 



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3.4.3        During
the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and
ending on a date ninety (90) days after the effective date of, a Company-initiated Registration and provided that the Company continues
to actively employ, in good faith, all commercially reasonable efforts to maintain the effectiveness of the applicable Shelf Registration
Statement, or (b) if, pursuant to Section 2.1.4, Holders have requested an Underwritten Shelf Takedown and the Company
and Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering, the Company may, upon giving prompt
written notice of such action to the Holders, delay any other registered offering pursuant to Section 2.1.4 or 2.4
for not more than ninety (90) consecutive calendar days or more than one hundred twenty (120) total calendar days in each case during
any twelve (12)-month period.


 


3.5           Reporting
Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company
under the Exchange Act, covenants to use 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; provided
that any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval
System shall be deemed to have been furnished or delivered to the Holders pursuant to this Section 3.5. The Company further
covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Securities held by such Holder without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule then in effect). 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.


 


Article IV

INDEMNIFICATION AND CONTRIBUTION


 


4.1           Indemnification.


 


4.1.1        The
Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors and agents
and each person or entity who controls such Holder (within the meaning of the Securities Act), against all losses, claims, damages, liabilities
and reasonable out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) caused by, resulting
from, arising out of or based upon any untrue or alleged untrue statement of material fact contained in or incorporated by reference
in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except
insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by such Holder
expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person or entity who controls
such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification
of the Holder, subject to customary exclusions.


 






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4.1.2        In
connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or
cause to be furnished) 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 (the “Holder Information”) and, to the extent permitted by
law, shall indemnify the Company, its directors, officers and agents and each person or entity who controls the Company (within the meaning
of the Securities Act) against all losses, claims, damages, liabilities and reasonable out-of-pocket expenses (including, without limitation,
reasonable outside attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in or incorporated
by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading,
but only to the extent that such untrue statement is contained in (or not contained in, in the case of an omission) 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 in proportion to and limited to the net proceeds received by such Holder from the sale
of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters,
their officers, directors and each person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same
extent as provided in the foregoing with respect to indemnification of the Company.


 


4.1.3        Any
person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s
right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless
in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to
the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party
a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.
No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement
which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms
of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party
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.


 



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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 or entity of such indemnified party and shall survive the
transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions
as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s
indemnification is unavailable for any reason.


 


4.1.5        If
the indemnification provided under Section 4.1 from the indemnifying party is unavailable or insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying
party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result
of such losses, claims, damages, liabilities and out-of-pocket 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 not
made by, in the case of an omission), or relates to information supplied by (or not supplied by in the case of an omission), such indemnifying
party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information
and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 4.1.5
shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount
paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the
limitations set forth in Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or out-of-pocket
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 Section 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 Section 4.1.5.
No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution pursuant to this Section 4.1.5 from any person or entity who was not guilty of such fraudulent
misrepresentation.


 



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Article V

MISCELLANEOUS


 


5.1           Notices.
Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed
to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person
or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail or facsimile. Each
notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served,
sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case
of notices delivered by courier service, hand delivery, electronic mail or facsimile, at such time as it is delivered to the addressee
(with the delivery receipt of the intended recipient or the affidavit of messenger) or at such time as delivery is refused by the addressee
upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: 424 Townsend Street, San
Francisco, CA 94107, Attention: Sid Venkatesan, Email: sid@embarktrucks.com, and, if to any Holder, at such Holder’s address,
electronic mail address or facsimile number as set forth in the Company’s books and records. Any party may change its address for
notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective
ten (10) days after delivery of such notice as provided in this Section 5.1.


 


5.2           Assignment;
No Third Party Beneficiaries.


 


5.2.1        This
Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or
in part.


 


5.2.2        Subject
to Section 5.2.4 and Section 5.2.5, this Agreement and the rights, duties and obligations of a Holder hereunder
may be assigned in whole or in part to such Holder’s Permitted Transferees; provided, that, with respect to the Embark Holders
and the Founders, the rights hereunder that are personal to such Holders may not be assigned or delegated in whole or in part, except
that (x) each of the Embark Holders (other than the Founders) shall be permitted to transfer its rights hereunder as the Embark Holders
to one or more affiliates or any direct or indirect partners, members or equity holders of such Embark Holder (it being understood that
no such transfer shall reduce any rights of such Embark Holder or such transferees) and (y) each Founder may transfer, in his sole
discretion, all or any portion of his rights under this Agreement to any Permitted Transferee of such Founder.


 


5.2.3        This
Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and
the permitted assigns of the Holders, which shall include Permitted Transferees.


 


5.2.4        This
Agreement shall not confer any rights or benefits on any persons or entities that are not parties hereto, other than as expressly set
forth in this Agreement and Section 5.2.


 


5.2.5        No
assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company
unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and
(ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions
of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made
other than as provided in this Section 5.2 shall be null and void.


 


5.3           Counterparts.
This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original,
and all of which together shall constitute the same instrument, but only one of which need be produced.


 



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5.4           Governing
Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY
AGREE THAT (1) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AND (2) THE VENUE
FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE EXCLUSIVELY IN THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY,
AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF NEW YORK, NEW YORK COUNTY, OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK.


 


5.5           TRIAL
BY JURY. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.


 


5.6           Amendments
and Modifications. Upon the written consent of (a) the Company and (b) the Holders of at least a majority on the basis
of voting power of the then outstanding Registrable Securities (including warrants on an as-exercised basis), compliance with any of
the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions
may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof
shall also require the written consent of the Sponsor so long as the Sponsor and its affiliates hold, in the aggregate, at least fifty
percent (50%) of the outstanding shares of Common Stock of the Company owned by the Sponsor and its affiliates as of the Closing; provided,
further, that notwithstanding the foregoing, any amendment hereto or waiver hereof shall also require the written consent of each
Embark Holder, so long as such Embark Holder and its affiliates hold, in the aggregate, at least five percent (5%) of the outstanding
shares of Common Stock of the Company owned by such Holder and its affiliates as of the Closing; and provided, further,
that any amendment or supplement hereto or waiver hereof that affects any Holder, solely in its capacity as a holder of securities of
the Company, in a manner that is adverse as compared to and materially different from other Holders (in such capacity) shall require
the consent of the Holder(s) so adversely affected. 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 or thereunder by such
party.


 



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5.7           Other
Registration Rights. Other than (i) the Third Party Investor Stockholders who have registration rights with respect to their
Investor Securities (and shares of common stock issuable upon exercise of the warrants constituting Investor Securities) pursuant to
their respective Subscription Agreements and (ii) as provided in the Warrant Agreement, dated as of January 12, 2021, between
the Company and Continental Stock Transfer & Trust Company, the Company represents and warrants that no person or entity, other
than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to
include such securities of the Company in any Registration Statement filed by the Company for the sale of securities for its own account
or for the account of any other person or entity. For so long as any Holder, together with its affiliates, holds, in the aggregate, at
least five percent (5%) of the outstanding shares of Common Stock of the Company, the Company hereby agrees and covenants that it will
not grant rights to register any Common Stock (or securities convertible into or exchangeable for Common Stock) pursuant to the Securities
Act that are more favorable, pari passu or senior to those granted to the Holders hereunder, without the prior written consent of such
Holder (such rights “Competing Registration Rights”). Further, the Company represents and warrants that, except
as provided in the first sentence of this Section 5.7, this Agreement supersedes any other registration rights agreement
or agreement with similar terms and conditions, and in the event of a conflict between any such agreement or agreements and this Agreement,
the terms of this Agreement shall prevail.


  


5.8           Term.
This Agreement shall terminate on the earlier of (a) the fifth anniversary of the date of this Agreement or (b) with respect
to any Holder, on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 3.5 and
Article IV shall survive any termination.


 


5.9           Holder
Information. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities
held by such Holder in order for the Company to make determinations hereunder.


 


5.10         Additional
Holders; Joinder. In addition to persons or entities who may become Holders pursuant to Section 5.2 hereof, subject to
the prior written consent of each Holder that, together with its affiliates, then holds, in the aggregate, at least five percent (5%)
of the outstanding shares of Common Stock of the Company, the Company may make any person or entity who acquires Common Stock or rights
to acquire Common Stock after the date hereof a party to this Agreement (each such person or entity, an “Additional Holder”)
by obtaining an executed joinder to this Agreement from such Additional Holder in the form of Exhibit A attached hereto (a
 “Joinder”). Such Joinder shall specify the rights and obligations of the applicable Additional Holder under
this Agreement; provided that any rights granted to any such Additional Holder to demand Underwritten Shelf Takedowns shall be
separate from and in addition to the rights of the Sponsor Holders and Embark Holders under Section 2.1.4. Upon the execution
and delivery and subject to the terms of a Joinder by such Additional Holder, the Common Stock of the Company then owned, or underlying
any rights then owned, by such Additional Holder (the “Additional Holder Common Stock”) shall be Registrable
Securities to the extent provided herein and therein and such Additional Holder shall be a Holder under this Agreement with respect to
such Additional Holder Common Stock.


 


5.11         Severability.
It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of
this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting
the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other jurisdiction.


 



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5.12         Removal
of NG Capital. NG Capital hereby acknowledges and agrees that (a) NG Capital was a party to the Original RRA solely as a representative
of certain Persons who had the right to subsequently elect to purchase certain shares of Common Stock and warrants to purchase shares
of Common Stock, pursuant to (and by execution of a joinder to) that certain Amended and Restated Forward Purchase Agreement between
the Company and NG Capital, dated as of April 21, 2021; (b) each of the Persons that made such an election has on the date
hereof, as a Third Party Investor Stockholder, directly purchased such shares of Common Stock and warrants, as Investor Securities, pursuant
to such Forward Purchase Agreement and has been directly granted registration rights pursuant hereto with respect to its Investor Securities
(and shares of Common Stock issuable upon exercise of the warrants constituting Investor Securities); (c) NG Capital hereby consents
to the amendment and restatement of the Original RRA effectuated by this Agreement; and (d) NG Capital and the Company hereby agree
agrees that, except for this Section 5.12 (which, notwithstanding any other provision of this Agreement, is for the express
benefit of the Company and NG Capital and cannot be amended without the prior written consent of each), NG Capital shall not be deemed
to be a party to this Agreement and shall have no rights or obligations under the Original RRA or this Agreement.


 


5.13         Entire
Agreement; Restatement. This Agreement constitutes the full and entire agreement and understanding between the parties with respect
to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter, including the Original
RRA, which hereafter shall no longer be of any force or effect.


 


[SIGNATURE PAGES FOLLOW]


 



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IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.


 


	 	COMPANY:
	 	 
	 	EMBARK TECHNOLOGY, INC.
	 	 
	 	By:	/s/Alex Rodrigues
	 	Name:	 Alex Rodrigues 
	 	Title:	Chief Executive Officer


 


[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


	 	HOLDERS:
	 	 
	 	
    NORTHERN GENESIS SPONSOR II LLC

	 	 
	 	By:	/s/ Ian Robertson
	 	Name:	Ian Robertson
	 	Title:	Managing Member


 


	 	NG CAPITAL:
	 	 
	 	NORTHERN GENESIS CAPITAL II LLC
	 	 
	 	By: 	Northern Genesis Holdings, Inc., 

its Managing Member 
	 	 	 
	 	By:	/s/Ian Robertson
	 	Name: 	Ian Robertson
	 	Title: 	President


 


[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


	 	ALEX RODRIGUES LIVING TRUST
	 	 
	 	By:	/s/ Alex Rodrigues
	 	Name: 	Alex Rodrigues
	 	Title: 	Trustee


 


	 	By:	/s/ Alex Rodrigues
	 	Name: 	Alex Rodrigues


 


[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


	 	BRANDON MOAK LIVING TRUST
	 	 
	 	By:	/s/ Brandon Moak
	 	Name: 	Brandon Moak
	 	Title: 	Trustee


 


	 	By:	/s/ Brandon Moak
	 	Name: 	Brandon Moak


 


[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


	 	DATA COLLECTIVE IV, L.P.
	 	 
	 	By:	Data Collective IV GP, LLC
	 	Its:	General Partner
	 	 	 
	 	By:	/s/Matthew Ocko
	 	Name: 	Matthew Ocko
	 	Title: 	Managing Member of the Managing Member


 





[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


	
    SEQUOIA CAPITAL U.S. VENTURE
    FUND XV, L.P.,

    SEQUOIA CAPITAL U.S. VENTURE
    XV PRINCIPALS FUND, L.P.,

    SEQUOIA CAPITAL U.S. VENTURE
    PARTNERS FUND XV, L.P.,

    SEQUOIA CAPITAL U.S. VENTURE
    PARTNERS FUND VX (Q), L.P.,

    all Cayman Islands exempted limited partnerships

     

    By: SC U.S. VENTURE XV MANAGEMENT, L.P.,

    a Cayman Islands exempted limited partnership, General Partner of Each

     

    By: SC US (TTGP), LTD.,

    a Cayman Islands exempted company, its General Partner

     
	 	 
	By:	/s/Pat Grady	 	 
	Name: 	Pat Grady	 	 
	Title: 	Authorized Signatory	 	 


 


	
    SEQUOIA CAPITAL U.S. GROWTH FUND VII, L.P.

    SEQUOIA CAPITAL U.S. GROWTH VII PRINCIPALS FUND, L.P.

    Each a Cayman Islands exempted limited partnership

     

    By: SC U.S. GROWTH VII MANAGEMENT, L.P.,

    A Cayman Islands exempted company, its General Partner

     

    By: SC US (TTGP), LTD.,

    a Cayman Islands exempted company, its General Partner

     
	 	 
	By:	/s/Pat Grady	 	 
	Name: 	Pat Grady	 	 
	Title: 	Authorized Signatory	 	 


 


[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


	 	SEQUOIA GROVE II, LLC
	 	 
	 	By:	 Sequoia Grove Manager, LLC
	 	Its: 	Manager (Non-Member)
	 	 	 
	 	By:	/s/Pat Grady
	 	Name: 	Pat Grady
	 	Title: 	Authorized Signatory


 


	 	SEQUOIA GROVE UK, L.P.
	 	 
	 	By:	 Sequoia Grove Manager, LLC
	 	Its:	 General Partner
	 	 	 
	 	By:	/s/Pat Grady
	 	Name: 	Pat Grady
	 	Title: 	Authorized Signatory


 


[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


	 	TIGER GLOBAL PRIVATE 

INVESTMENT PARTNERS XI, L.P. 
	 	 
	 	By:	/s/Steven Boyd
	 	Name:	Steven Boyd
	 	Title:	General Counsel


 


[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


	Y COMBINATOR INVESTMENTS, LLC SERIES W16	 
	 	 
	By: 	Y COMBINATOR MANAGEMENT, LLC	 
	Its:	 Managing Member	 


 


	By:	/s/Jonathan Levy	 
	Name: 	Jonathan Levy	 
	Title: 	Authorized Signatory	 


 


	Y COMBINATOR CONTINUITY HOLDINGS I, LLC	 
	 	 
	By:	/s/Jonathan Levy	 
	Name: 	Jonathan Levy	 
	Title: 	Authorized Signatory	 


 


	YC HOLDINGS II, LLC	 
	 	 
	By:	/s/Jonathan Levy	 
	Name: 	Jonathan Levy	 
	Title: 	Authorized Signatory	 


 


	YCVC FUND I, L.P.	 
	 	 
	By:	YCVC Fund GP, LLC	 
	Its:	Managing Member	 



 


	By:	/s/Jonathan Levy	 
	Name: 	Jonathan Levy	 
	Title: 	Authorized Signatory	 


 


[Signature Page to Registration Rights
Agreement]


 



    


     


    




 


Exhibit A


 


REGISTRATION RIGHTS AGREEMENT JOINDER


 


The undersigned is executing and delivering this
joinder (this “Joinder”) pursuant to the Amended and Restated Registration Rights Agreement, dated as of [•],
2021 (as the same may hereafter be amended, the “Registration Rights Agreement”), among [______], a Delaware
corporation (the “Company”), and the other persons or entities named as parties therein. Capitalized terms used
but not otherwise defined herein shall have the meanings provided in the Registration Rights Agreement.


 


By executing and delivering this Joinder to the
Company, and upon acceptance hereof by the Company upon the execution of a counterpart hereof, the undersigned hereby agrees to become
a party to, to be bound by, and to comply with the Registration Rights Agreement as a Holder of Registrable Securities in the same manner
as if the undersigned were an original signatory to the Registration Rights Agreement, and the undersigned’s shares of Common Stock
shall be included as Registrable Securities under the Registration Rights Agreement to the extent provided therein; provided, however,
that the undersigned and its permitted assigns (if any) shall not have any rights as Holders, and the undersigned’s (and its transferees’)
shares of Common Stock shall not be included as Registrable Securities, for purposes of the Excluded Sections.


 


For purposes of this Joinder, “Excluded
Sections” shall mean [ ].


 


Accordingly, the undersigned has executed and
delivered this Joinder as of the __________ day of __________, 20__.


 


	 	 
	 	Signature of Stockholder
	 	 
	 	Print Name of Stockholder
	 	Its:
	 	 
	 	Address: 
	 	 
	 	 


 


	Agreed and Accepted as of	 
	____________, 20__	 
	[________]	 
	 	 
	By:	 	 
	Name:	 
	Its: