Exhibit 4.9


 


Certain confidential
information contained in this document, marked by [***], has been omitted because American Well Corporation has determined that the information
(i) is not material and (ii) is the type that American Well Corporation customarily and actually treats as private or confidential.


 


 


 


 


 


AGREEMENT
AND PLAN OF MERGER


 


BY
AND AMONG


 


AMERICAN
WELL CORPORATION,


 


SILVERCLOUD
HEALTH HOLDINGS INC.,


 


SHANNON
MERGER SUBSIDIARY Inc.,


 


Shannon
MERGER Sister SubSIDIARY, LLC,


 


AND


 


FORTIS
ADVISORS LLC,

AS THE SECURITYHOLDER REPRESENTATIVE NAMED HEREIN


 


Dated
as of July 28, 2021


 


 


 


 


 


 


 


 


 


 


 




     


     


    

TABLE
OF CONTENTS


 


	Article I DEFINITIONS; CERTAIN RULES OF CONSTRUCTION. 	2
	 	 
	Section 1.01	Definitions	2
	Section 1.02	Certain Matters of Construction	20
	 	 	 
	Article II DESCRIPTION OF TRANSACTION. 	21 
	Section 2.01	Merger of Merger Sub into the Company; Subsequent Merger	21
	Section 2.02	Closing; Effective Time	23
	Section 2.03	Withholding	27
	Section 2.04	Dissenting Shares	27
	Section 2.05	Payment of Closing Merger Consideration; Deposit of Adjustment Escrow
    Amount; Deposit of Securityholder Representative Reserve	28
	Section 2.06	Surrender of Certificates	30
	Section 2.07	Consideration Spreadsheet and Estimated Closing Balance Sheet	33
	Section 2.08	Purchase Price Adjustment.	34
	Section 2.09	Earn-Out	37
	Section 2.10	Payments with Respect to Bonus Awards.	42
	Section 2.11	Tax Treatment	43
	Section 2.12	Further Action	43
	 	 	 
	Article III REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY Group. 	43 
	Section 3.01	Organization	44
	Section 3.02	Power and Authorization; Board Approval; Requisite Vote	44
	Section 3.03	Authorization of Governmental Authorities	45
	Section 3.04	Noncontravention	45
	Section 3.05	Capitalization of the Company Group	45
	Section 3.06	Financial Matters	47
	Section 3.07	Absence of Certain Developments	48
	Section 3.08	Indebtedness; Guarantees	48
	Section 3.09	Assets	48
	Section 3.10	Real Property	49
	Section 3.11	Intellectual Property	50
	Section 3.12	Compliance with Laws; Permits	52
	Section 3.13	Data Privacy and Security	54
	Section 3.14	Compliance with Healthcare Legal Requirements	55
	Section 3.15	Tax Matters	57
	Section 3.16	Employee Benefit Plans	59
	Section 3.17	Environmental Matters	61
	Section 3.18	Contracts	62
	Section 3.19	Related Party Transactions	64
	Section 3.20	Customers and Suppliers	65
	Section 3.21	Employees; Labor Matters	65



 


 


 



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	Section 3.22	Litigation; Government Orders	66
	Section 3.23	Anti-Corruption and International Risk.	66
	Section 3.24	Insurance	67
	Section 3.25	No Brokers	68
	Section 3.26	Books and Records.	68
	Section 3.27	Accredited Investor Status	68
	Section 3.28	Disclaimer of Certain Representations and Warranties	68
	 	 	 
	Article IV REPRESENTATIONS AND WARRANTIES OF PArent AND MERGER SUB. 	68 
	Section 4.01	Organization	68
	Section 4.02	Power and Authorization	69
	Section 4.03	Merger Sub and Sister Subsidiary.	69
	Section 4.04	Authorization of Governmental Authorities	69
	Section 4.05	Noncontravention	69
	Section 4.06	No Brokers	69
	Section 4.07	Litigation	70
	Section 4.08	Regulatory Reports, SEC Filings and the Sarbanes-Oxley Act.	70
	Section 4.09	Financial Statements and Financial Matters.	71
	Section 4.10	Parent’s Investigation and Non-Reliance	71
	 	 	 
	Article V COVENANTS OF THE PARTIES 	72 
	Section 5.01	Commercially Reasonable Efforts; Notices and Consents	72
	Section 5.02	Operation of the Business	72
	Section 5.03	Access to Premises and Information	75
	Section 5.04	No Solicitation	76
	Section 5.05	Expenses	76
	Section 5.06	Confidentiality	76
	Section 5.07	Publicity	76
	Section 5.08	Pre-Closing Deliveries	76
	Section 5.09	Indemnification of Directors and Officers	77
	Section 5.10	Data Room Record	78
	Section 5.11	Stockholder Approval	78
	Section 5.12	Registration Procedures and Expenses	79
	Section 5.13	Delivery of Certificates of Parent; Private Placement	80
	Section 5.14	Employee Benefit Matters; Termination of Employee Plans	80
	Section 5.15	Section 280G	81
	Section 5.16	Notification	82
	Section 5.17	Minimum Aggregate Amount of Stock Consideration	82
	Section 5.18	Irish Subsidiary Cash	82
	Section 5.19	[***]	83
	Section 5.20	Further Assurances	83
	 	 	 
	Article VI CONDITIONS TO THE OBLIGATIONS OF Parent AT THE CLOSING. 	83 



 



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	Section 6.01	Representations and Warranties	83
	Section 6.02	Performance	83
	Section 6.03	Delivery of Documents	84
	Section 6.04	Delivery of Closing Certificates	84
	Section 6.05	Qualifications	84
	Section 6.06	Absence of Litigation	84
	Section 6.07	No Material Adverse Change.	84
	Section 6.08	Written Consent	84
	 	 	 
	Article VII CONDITIONS TO THE COMPANY’S OBLIGATIONS AT THE CLOSING. 	85 
	Section 7.01	Representations and Warranties	85
	Section 7.02	Performance	85
	Section 7.03	Bring-Down Certificate	85
	Section 7.04	Qualifications	85
	Section 7.05	Absence of Litigation	85
	Section 7.06	Delivery of Documents	85
	Section 7.07	R&W Policy	85
	 	 	 
	Article VIII TERMINATION 	85 
	Section 8.01	Termination of Agreement	85
	Section 8.02	Effect of Termination	86
	 	 	 
	Article IX NO SURVIVAL; LIMITATIONS 	87 
	Section 9.01	No Survival	87
	Section 9.02	Liability	87
	 	 	 
	Article X TAX MATTERS 	89 
	Section 10.01	Tax Setoff	89
	Section 10.02	Straddle Period	89
	Section 10.03	Preparation of Tax Returns	90
	Section 10.04	Tax Proceedings	90
	Section 10.05	Tax Sharing Agreements	91
	Section 10.06	Certain Taxes and Fees	91
	Section 10.07	Tax Refunds	91
	Section 10.08	Prohibited Tax Actions	92
	Section 10.09	Cooperation on Tax Matters	92
	 	 	 
	Article XI MISCELLANEOUS 	92 
	Section 11.01	Notices	92
	Section 11.02	Succession and Assignment; No Third-Party Beneficiaries	94
	Section 11.03	Amendments and Waivers	94
	Section 11.04	Provisions Concerning the Securityholder Representative	95
	Section 11.05	Entire Agreement	98
	Section 11.06	Counterparts; Facsimile Signature	98



 


 



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	Section 11.07	Severability	98
	Section 11.08	Governing Law	98
	Section 11.09	Jurisdiction; Venue; Service of Process	99
	Section 11.10	Specific Performance	99
	Section 11.11	Waiver of Jury Trial	100
	Section 11.12	No Recourse to Non-Party Affiliates	100


 


EXHIBITS


 


	Exhibit	 
	A	List of Key Employees
	B	Accounting Principles
	C	Form of Escrow Agreement
	D	Intentionally Omitted
	E	Intentionally Omitted
	F	R&W Insurance Policy
	G	Form of Subscription Agreement
	H	Form of Warrant Cancellation Agreement
	I	Form of Letter of Transmittal
	J	Accredited Investor Questionnaire
	K	Form of Company Secretary’s Certificate
	L	Form of Company Bring-Down Certificate
	M	Form of Parent Bring-Down Certificate
	N	Business Plan
	O	Restrictive Covenant Agreement


 


ANNEXES


 


	ANNEX	 
	I	Net Working Capital Calculation Schedule
	II	Sample Calculations of the Earn-Out Payment
	III	List of Option and Warrant holders



 


 



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AGREEMENT
AND PLAN OF MERGER


 


THIS
AGREEMENT AND PLAN OF MERGER (“Agreement”) is made
and entered into as of July 28, 2021, by and among: American Well Corporation, a Delaware corporation (“Parent”),
Shannon Merger Subsidiary Inc., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Merger Sub”);
Shannon Merger Sister Subsidiary, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of Parent (“Sister
Subsidiary”); SilverCloud Health Holdings Inc., a Delaware corporation (the “Company”) and Fortis Advisors
LLC, a Delaware limited liability company, separately in the capacity as the Securityholder Representative (the “Securityholder
Representative”).


 


recitals


 


WHEREAS,
in accordance with this Agreement and the General Corporation Law of the State of Delaware (the “DGCL”), Parent, Merger
Sub and the Company intend to effect a merger of Merger Sub into the Company (the “Merger”). Upon the consummation
of the Merger, Merger Sub will cease to exist, and the Company will become a wholly owned subsidiary of Parent;


 


WHEREAS,
immediately following the Merger, and in accordance with this Agreement and the Limited Liability Company Act of the State of Delaware
(the “DLLCA”), the Company will be merged with and into Sister Subsidiary (the “Subsequent Merger”).
Upon the consummation of the Subsequent Merger, the Company will cease to exist, and Sister Subsidiary will survive as a wholly owned
subsidiary of Parent;


 


WHEREAS,
the respective boards of directors of Parent and Merger Sub have approved this Agreement and the Merger;


 


WHEREAS,
the board of directors of the Company (the “Company Board”) has (i) approved and declared advisable this Agreement
and the other Ancillary Agreements, the Merger, and the other transactions contemplated by this Agreement and approved the execution,
delivery and performance of this Agreement and the other Ancillary Agreements, (ii) determined that the terms of the Merger and the other
transactions contemplated by this Agreement are fair to and in the best interests of the Company and its stockholders, and (iii) recommended
that the Company’s stockholders adopt this Agreement and execute the Written Consent, to the extent required by Legal Requirements;


 


WHEREAS,
for U.S. federal income tax purposes, the parties intend that the Merger and the Subsequent Merger (as defined below) (collectively,
the “Mergers”), taken together will constitute a single integrated transaction described in Rev. Rul. 2001-46, 2001-2
C.B. 321 and qualify as a reorganization within the meaning of Section 368(a) of the Code, and the regulations promulgated thereunder
and that this Agreement will be, and is, adopted as a plan of reorganization;


 


WHEREAS,
concurrently with the execution and delivery of this Agreement, as an inducement for Parent and Merger Sub to enter into this Agreement,
Ken Cahill is entering into an employment agreement with Parent or its Affiliate (the “Key Employee Employment Agreement”),
which will become effective at the Effective Time; and


 




    Certain confidential information contained in this document, marked by [***], has been omitted because American Well Corporation has determined that the information (i) is not material and (ii) is the type that American Well Corporation customarily and actually treats as private or confidential.



     


    

WHEREAS,
concurrently with the Closing (as defined below), each of the individuals listed on Exhibit A (the “Key Employees”)
is entering into a restrictive covenant agreement with Parent or its Affiliate substantially in the form of Exhibit O (each, a
“Restrictive Covenant Agreement”), each of which will become effective at the Closing.


 


agreement


 


NOW
THEREFORE, in consideration of the premises and mutual promises herein made, and in consideration of the representations, warranties
and covenants herein contained, the parties to this Agreement hereby agree as follows:


 


Article
I

DEFINITIONS; CERTAIN RULES OF CONSTRUCTION.


 


Section
1.01Definitions. In addition to the other terms defined throughout
this Agreement, the following terms shall have the following meanings when used in this Agreement:


 


“1933
Act” means the Securities Act of 1933.


 


“Accounting
Principles” means GAAP as in effect on the Most Recent Balance Sheet Date and, to the extent consistent with GAAP, using the
same accounting methods, principles, practices, procedures and estimation methodologies as those utilized in the preparation of the Net
Working Capital Calculation Schedule set forth on Annex I, and in the preparation of the Most Recent Balance Sheet including those
set forth on Exhibit B.


 


“Accredited
Investor” means a Person who qualifies as an “accredited investor” under Rule 501(a) of Regulation D of the Securities
Act.


 


“Action”
means any claim, controversy, action, charge, cause of action, suit, litigation, arbitration, mediation, investigation, opposition, interference,
audit, assessment, hearing, complaint, demand or other legal proceeding (whether sounding in contract, tort or otherwise, whether civil,
criminal, judicial or investigative and whether brought at law or in equity) that is commenced, brought, conducted, tried or heard by
or before, or otherwise involving, any Governmental Authority, arbitrator or mediator.


 


“Additional
Merger Consideration” means, as of any date of determination, the sum of (i) the portion of the Escrow Fund paid or payable
to Effective Time Holders, plus (ii) any Payment Shortfall paid or payable to Effective Time Holders, plus
(iii) the portion of the Securityholder Representative Reserve distributed to Effective Time Holders.


 


“Additional
Per Share Merger Consideration” means, as of any date of determination, the quotient determined by dividing (i)
the Additional Merger Consideration, by (ii) the Fully Diluted Company Share Number.


 


“Adjustable
Amounts” means Closing Cash, Company Transaction Expenses, Closing Indebtedness and Closing Net Working Capital.


 




    2
 
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“Adjustment
Calculation Time” means 11:59 p.m. (Eastern Time) on the day immediately prior to the Closing Date.


 


“Adjustment
Escrow Amount” means $300,000.


 


“Adjustment
Escrow Fund” means an Adjustment Escrow Fund established pursuant to the Escrow Agreement, comprising of the Adjustment Escrow
Amount.


 


“Affiliate”
means, with respect to any specified Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect
common control with such specified Person. For purposes of the foregoing, (a) a Person shall be deemed to control a specified Person
if such Person (or a Family Member of such Person) possesses, directly or indirectly, the power to direct or cause the direction of the
management and policies of such specified Person or (b) if such other Person is at such time a direct or indirect beneficial holder of
at least 10% of any class of the Equity Interests of such specified Person.


 


“Aggregate
Option Exercise Amount” means the aggregate dollar amount payable to the Company upon the exercise of all In-The-Money Options.


 


“Aggregate
Warrant Exercise Amount” means the aggregate dollar amount payable to the Company upon the exercise of all In-The-Money Warrants.


 


“Ancillary
Agreements” means each of the agreements, certificates, instruments and documents to be executed and delivered by the parties
in connection with the Contemplated Transactions, other than this Agreement.


 


“Anti-Bribery
Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977 (as amended), (b) the United Kingdom Bribery Act (as amended),
and (c) other Legal Requirements concerning anti-bribery, anti-corruption, and anti-money laundering applicable to the Company Group
and its operations from time to time.


 


“Applicable
Share Price” means $11.81, which is equal to the volume weighted average price of Parent Class A Common Stock on the New York
Stock Exchange over the thirty-day calendar period prior to and including the date of this Agreement.


 


“Bonus
Award” means each Bonus Award identified in the Consideration Spreadsheet, that vests in connection with, or as a result of,
the consummation of the transactions contemplated hereby (whether alone or together with another event).


 


“Bonus
Cash Escrow Amount” means the amount identified as the “Bonus Cash Escrow Amount” in the Consideration Spreadsheet.


 


“Bonus
Escrow Fund” means a Bonus Escrow Fund established pursuant to the Escrow Agreement to hold the Closing Common Per Share Merger
Consideration and the Additional Per Share Merger Consideration to be issued pursuant to Section 2.02(j).


 




    3
 
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“Bonus
Escrow Amount” means the sum of (a) the Bonus Cash Escrow Amount plus (b) the Additional Merger Consideration,
if any, to be paid to those holders of Employee RSUs set forth on Schedule 2.02(k).


 


“Bonus
Share Number” means the aggregate number of phantom shares of Company Capital Stock set forth in the Consideration Spreadsheet
with respect to each Bonus Award.


 


“Business”
means the businesses conducted by the Company Group as of the date hereof.


 


“Business
Day” means any day other than a Saturday or a Sunday or a weekday on which banks in Boston, Massachusetts are authorized or
required to be closed.


 


“CARES
Act” means the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) and any similar or successor legislation or executive
order or executive memo relating to the COVID-19 public health emergency, as well as any applicable guidance issued thereunder or relating
thereto (including the Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing Covid-19 Disaster, dated August 8, 2020)
in any U.S. jurisdiction, and any subsequent legislation intended to address the consequences of COVID-19, including the Health and Economic
Recovery Omnibus Emergency Solutions Act.


 


“Cash”
means (i) cash and cash equivalents, (ii) all inbound deposited but uncleared bank deposits, checks, drafts and wires and (iii) cash
and cash receipts in transit, in each case of the Company Group less the sum of the Company Group outbound checks, wires and drafts issued
and uncleared by the bank; provided, that when Cash is determined for the purposes of this Agreement, there shall be deducted
therefrom a sum equal to any cash that is held by the Irish Subsidiary that is not then capable of being lawfully distributed; provided,
that for the avoidance of doubt, that there shall not be any double counting of any Cash located in the Company Group.


 


“Change
of Control” means (a) any acquisition or purchase by any Person or “group” (as defined under Section 13(d) of the
Exchange Act and the rules and regulations thereunder) of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of more
than fifty (50%) of the total number of outstanding voting securities of Parent, (b) a tender offer or exchange offer that if consummated
would result in any Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder)
having beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of more than fifty percent (50%) of the total number of
outstanding voting securities of Parent, (c) a merger, consolidation, business combination, reorganization or similar transaction involving
the Company, (d) a sale, lease, exchange, transfer or license (other than in the Ordinary Course of Business) of over fifty percent (50%)
of the consolidated assets of Parent and (e) a liquidation or dissolution of Parent.


 


“Change
of Control Payment” means any transaction, change of control, retention, bonus, severance or other similar payment or form
of Compensation that is created, accelerated, accrues or becomes payable by any member of the Company Group or any of its Affiliates
to any present or former director, manager, officer, stockholder, employee or independent contractor thereof, including pursuant to any
employment agreement, benefit plan or any other Contractual Obligation, including the employee portion of any Taxes payable on or triggered
by any such


 




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payment,
without regard to the ability of any member of the Company Group to defer such Taxes under the CARES Act, as a result of, or in connection
with the execution and delivery of this Agreement or any Ancillary Agreement or the consummation of the Contemplated Transactions, but
excluding, for the avoidance of doubt, any payment made pursuant to Section 2.05.


 


“Closing
Cash” means Cash as of the Adjustment Calculation Time.


 


“Closing
Cash Consideration” means an amount equal to (a) One Hundred Five Million and no/100 Dollars ($105,000,000.00), plus
(b) Closing Cash, minus (c) Closing Indebtedness, minus (d) Company Transaction Expenses, plus
(e) the Net Working Capital Excess (if any), minus (f) the Net Working Capital Shortfall (if any), minus
(g) the Escrow Amount, minus (h) the Securityholder Representative Reserve, plus the (i) Unaccredited
Investor Additional Cash Amount.


 


“Closing
Common Per Share Merger Consideration” means, in respect of each share of Company Capital Stock issued and outstanding as of
immediately prior to the Effective Time, (i) a portion of the Closing Merger Consideration determined by dividing the sum
of (a) the Closing Merger Consideration, plus (b) the Aggregate Option Exercise Amount, plus (c) the Aggregate
Warrant Exercise Amount, by (ii) the Fully Diluted Company Share Number.


 


“Closing
Indebtedness” means the sum of (a) the aggregate amount of Indebtedness of the Company as of the Adjustment Calculation Time
and (b) One Million One Hundred Thousand and no/100 Dollars ($1,100,000).


 


“Closing
Merger Consideration” means (a) One Hundred Five Million and no/100 Dollars ($105,000,000.00), plus (b) Estimated
Closing Cash, plus (c) the Stock Consideration, minus (d) Estimated Closing Indebtedness, minus
(e) Estimated Company Transaction Expenses, plus (f) the Estimated Net Working Capital Excess (if any), minus
(g) the Estimated Net Working Capital Shortfall (if any), minus (h) the Escrow Amount, minus (i) the Securityholder
Representative Reserve, plus (i) the Unaccredited Investor Additional Cash Amount.


 


“Closing
Net Working Capital” means the remainder of (a) the combined current assets of the Company reflected in the line items included
in the Net Working Capital Calculation Schedule minus (b) the combined current liabilities of the Company reflected in
the line items included in the Net Working Capital Calculation Schedule, in each case, calculated as of the close of business on the
day immediately preceding the Closing Date in accordance the Accounting Principles; provided that Closing Net Working Capital
shall not take into account any amounts in respect of income Taxes (including income Tax assets and income Tax liabilities), any amounts
of Indebtedness or any accrued liabilities that constitute Company Transaction Expenses or Change of Control Payments.


 


“Closing
Option Per Share Merger Consideration” means in respect of each share of Company Common Stock subject to an In-The-Money Option,
a portion of the Closing Merger Consideration determined by dividing (i) the sum of (a) the Closing Merger Consideration,
plus (b) the Aggregate Option Exercise Amount, plus (c) the Aggregate Warrant Exercise Amount, by (ii) the
Fully Diluted Company Share Number.


 




    5
 
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“Closing
Warrant Per Share Merger Consideration” means in respect of each share of Company Common Stock subject to such In-The-Money
Warrant, a portion of the Closing Merger Consideration determined by dividing (i) the sum of (a) the Closing Merger Consideration,
plus (b) the Aggregate Option Exercise Amount, plus (c) the Aggregate Warrant Exercise Amount, by (ii) the
Fully Diluted Company Share Number.


 


“Code”
means the U.S. Internal Revenue Code of 1986, as amended.


 


“Company
Capital Stock” means the Company Common Stock and Company Preferred Stock.


 


“Company
Common Stock” means the common stock, par value $0.0001 per share, of the Company.


 


“Company
Disclosure Schedule” means the disclosure schedule delivered by the Company to Parent contemporaneously with this Agreement.
The Company Disclosure Schedule shall be arranged in sections and subsections corresponding to the numbered and lettered sections and
subsections contained in this Agreement.


 


“Company
Fundamental Representations” means the representations and warranties contained in Section 3.01 (Organization; No Subsidiaries),
Section 3.02 (Power and Authorization), Section 3.04(b)(i) (Breach of Organizational Documents), Section 3.05 (Capitalization
of the Company), Section 3.15 (Tax Matters) and Section 3.25 (No Brokers).


 


“Company
Group” means the Company and its Subsidiaries.


 


“Company
Group Intellectual Property Rights” means all Intellectual Property Rights owned by the Company Group or used by the Company
Group, including all Intellectual Property Rights in and to Company Group Technology.


 


“Company
Group’s Knowledge,” “Knowledge of the Company Group” and similar formulations means, with respect
to the Company Group, the actual knowledge, after reasonable investigation, of Kevin Higgins, Ken Cahill, James Bligh, Michelle McGill,
Derek Richards, Karen Tierney and Leon Nangle.


 


“Company
Group Technology” means any and all Technology owned by the Company Group or used by the Company Group.


 


“Company
Options” means options to purchase shares of Company Common Stock granted by the Company pursuant to the Equity Plan or otherwise
and that are outstanding and unexercised immediately prior to the Effective Time.


 


“Company
Preferred Stock” means the Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series B Preferred Stock, Series Seed-1
Preferred Stock and Series Seed-2 Preferred Stock.


 




    6
 
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“Company
Revenue” means revenue of the Company as such term is used and determined in accordance with the Accounting Principles.


 


“Company
Transaction Expenses” means all costs, fees and expenses incurred in connection with or in anticipation of the negotiation,
execution and delivery of this Agreement and the Ancillary Agreements or the consummation of the Contemplated Transactions, including,
(a) (i) all fees and expenses payable to the Company’s financial advisors and all other brokerage fees, commissions, finders’
fees or financial advisory fees so incurred, (ii) the fees and expenses of the Company’s legal and accounting advisors and all
other fees and expenses of legal counsel, accountants, consultants and other experts and advisors so incurred, (iii) any Change of Control
Payments; (iv) any Taxes payable on or triggered by payments in respect of the cash or Equity Interests under or as described in Article
II of this Agreement other than pursuant to Section 2.09, (v) an amount equal to 100% of the fees and expenses of the Escrow Agent;
(vi) an amount equal to 50% of the fees, costs and expenses incurred to obtain the D&O tail policy and (vii) an amount equal to 50%
of the fees, costs and expenses incurred to obtain the R&W Insurance Policy.


 


“Company
Voting Common Stock” means the Company Common Stock designated as Voting Common Stock pursuant to the Certificate of Incorporation
of the Company.


 


“Company
Warrant” means warrants to purchase shares of Company Common Stock granted by the Company that are outstanding and unexercised
prior to the Effective Time.


 


“Compensation”
means, with respect to any Person, all wages, salaries, compensation, remuneration, commissions, consulting fees, bonuses or benefits
of any kind or character whatsoever (including issuances or grants of Equity Interests), made directly or indirectly by any member of
the Company Group to or for the benefit of such Person or any Family Member of such Person.


 


“Contemplated
Transactions” means the transactions contemplated by this Agreement, including (a) the Merger and the other transactions described
in the recitals to this Agreement, (b) the execution, delivery and performance of the Ancillary Agreements, and (c) the payment of fees
and expenses relating to such transactions.


 


“Contractual
Obligation” means, with respect to any Person, any contract, agreement, deed, note, bond, indenture, insurance policy, mortgage,
lease, sublease, license, sublicense, joint venture or other commitment, promise, undertaking, obligation, arrangement, instrument or
understanding, in each case, whether written or oral, to which or by which such Person is a party or otherwise subject or bound or to
which or by which any property, business, operation or right of such Person is subject or bound.


 


“Department”
means those line items set forth in the Business Plan under the headings “IE/UK Departments” and “US Departments.”


 


“Earn-Out
Period” means the period from January 1, 2022 to December 31, 2022.


 




    7
 
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“Effective
Time Holders” mean those Persons who held shares of Company Capital Stock, In-The-Money Options, Employee RSUs, In-The-Money
Warrants and Bonus Awards immediately prior to the Effective Time.


 


“Employee
Option” means each Company Option granted to the holder in the holder’s capacity as, or that had vesting tied to the
holder’s performance of services as, an employee of the Company for applicable employment Tax purposes.


 


“Employee
RSU” means each restricted stock unit granted pursuant to the RSU Equity Plan, in each case, that vests in connection with,
or as a result of, the consummation of the transactions contemplated hereby (whether alone or together with another event).


 


“Employee
Plan” means any plan, program, policy, agreement, arrangement or Contractual Obligation, whether or not reduced to writing,
and whether covering a single individual or a group of individuals, that (a) is an “employee benefit plan” (within the meaning
of Section 3(3) of ERISA, whether or not subject to ERISA), (b) relates to a stock bonus, stock ownership, stock purchase, equity or
equity-based incentive or (c) is any other deferred-compensation, employment (including offer letters), independent contractor, retirement,
severance, vacation or paid time-off, transaction, retention, change in control, welfare-benefit, reimbursement, cash incentive, commission,
bonus, profit-sharing, pension, employee loan, health, welfare, cafeteria, incentive or fringe-benefit plan, program, policy, agreement,
arrangement or Contractual Obligation.


 


“Encumbrance”
means any charge, claim, community or other marital property interest, equitable or ownership interest, lien (statutory or other), license,
sublicense, option, pledge, hypothecation, security interest, mortgage, deed of trust, right of way, encumbrance, easement, encroachment,
servitude, right of first offer or first refusal, buy/sell agreement and any other restriction or covenant of any kind with respect to,
or condition governing the use, construction, voting (in the case of any security or Equity Interest), transfer, receipt of income or
exercise of any other attribute of ownership (other than, in the case of a security, any restriction on the transfer of such security
arising solely under federal and state securities laws).


 


“Enforceable”
means, with respect to any Contractual Obligation stated to be Enforceable by or against any Person, that such Contractual Obligation
is a legal, valid and binding obligation of such Person enforceable by or against such Person in accordance with its terms, except to
the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at law).


 


“Environmental
Laws” means any Legal Requirement relating to (a) releases or threatened releases of Hazardous Substances, (b) pollution or
protection of public health or the environment or worker safety or health or (c) the manufacture, handling, transport, use, treatment,
storage, or disposal of Hazardous Substances.


 


“Equity
Interest” means, with respect to any Person, (a) any capital stock, partnership or membership interest, unit of participation
or other similar interest (however designated) in such


 




    8
 
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Person
and (b) any option, restricted stock, restricted stock unit, profits interest, equity appreciation right, phantom equity interest, warrant,
purchase right, conversion right, exchange right or other Contractual Obligation which would entitle any other Person to acquire any
such interest in such Person or otherwise entitle any other Person to share in the equity, profits, earnings, losses or gains of such
Person (including stock appreciation, phantom stock, profit participation or other similar rights).


 


“Equity
Plan” means the Company’s 2015 Share Option Plan, as amended August 26, 2019.


 


“ERISA”
means the U.S. Employee Retirement Income Security Act of 1974.


 


“Escrow
Agent” means Acquiom Clearinghouse LLC.


 


“Escrow
Agreement” means the Escrow Agreement among Parent, the Securityholder Representative and the Escrow Agent substantially in
the form of Exhibit C.


 


“Escrow
Amount” means the Adjustment Escrow Amount, the Retention Escrow Amount and the Bonus Escrow Amount.


 


“Escrow
Fund” means the escrow fund established pursuant to the Escrow Agreement comprising of the Adjustment Escrow Fund, the Retention
Escrow Fund and the Bonus Escrow Fund.


 


“Estimated
Closing Cash Consideration” means an amount equal to (a) One Hundred Five Million and no/100 Dollars ($105,000,000.00), plus
(b) Estimated Closing Cash, minus (c) the Estimated Closing Indebtedness, minus (d) Estimated Company
Transaction Expenses, plus (e) the Estimated Net Working Capital Excess (if any), minus (f) the Estimated
Net Working Capital Shortfall (if any), minus (g) the Escrow Amount, minus (h) the Securityholder Representative
Reserve, plus (i) the Unaccredited Investor Additional Cash Amount.


 


“Facilities”
means any buildings, plants, improvements or structures located on the Leased Real Property.


 


“Family
Member” means, with respect to any individual, (a) such Person’s spouse, (b) each parent, brother, sister or child of
such Person or such Person’s spouse, (c) the spouse of any Person described in clause (b) above, (d) each child of any Person described
in clauses (a), (b) or (c) above, (e) each trust created for the benefit of one or more of the Persons described in clauses (a) through
(d) above and (f) each custodian or guardian of any property of one or more of the Persons described in clauses (a) through (e) above
in his or her capacity as such custodian or guardian.


 


“FDA”
means the U.S. Food and Drug Administration.


 


“FDA
Laws” means all Legal Requirements applicable to the operation of each member of the Company Group’s business related
to the research, investigation, development, production, testing, packaging, marketing, distribution, storage, shipping, transport, advertising,
labeling,


 




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promotion,
sale, export, import, use handling and control, safety, efficacy, reliability or manufacturing of medical devices, including (a) the
Federal Food, Drug, and Cosmetic Act of 1938, as amended (21 U.S.C. Section 321 et seq.), (b) the Public Health Service Act of 1944,
(c) the rules and regulations promulgated and enforced by the FDA thereunder, including, as applicable, those requirements relating to
the FDA’s Quality System Regulation at 21 C.F.R. Part 820, investigational use, premarket notification and premarket approval and
applications to market new medical devices, establishment registration and listing, and reporting of corrections and removals, (d) Legal
Requirements governing the development, conduct, monitoring, subject informed consent, auditing, analysis and reporting of clinical trials
including the Good Clinical Practices regulations contained in 21 C.F.R. Parts 11, 50, 54, 56 and 812, (e) Legal Requirements governing
the conduct of non-clinical laboratory studies, including Good Laboratory Practices regulations contained in 21 C.F.R. Part 58, (f) Legal
Requirements governing data-gathering activities relating to the detection, assessment, and understanding of adverse events (including
adverse event and malfunction reporting regulations of FDA and ICH) and (g) all comparable state, federal or foreign Legal Requirements
relating to any of the foregoing, including ISO 13485:2016 and applicable ICH and the International Organization for Standardization
requirements.


 


“Fraud”
means common law fraud committed by a Person in the making of the representations and warranties in Article III and Article
IV (each as modified by the Disclosure Schedules).


 


“Fully
Diluted Company Share Number” means, as of any date of determination, the sum, without duplication, of: (a) the aggregate number
of shares of Company Common Stock outstanding immediately prior to the Effective Time (other than shares of Company Common Stock which
are to be canceled and retired in accordance with Section 2.02(d)(viii), if any); (b) the aggregate number of shares of Company
Common Stock issuable as if the Company Preferred Stock issued and outstanding as of immediately prior to the Effective Time converted
to Company Common Stock immediately prior to the Effective Time; (c) the aggregate number of shares of Company Common Stock issuable
upon the exercise in full of all In-The-Money Options issued and outstanding as of immediately prior to the Effective Time; (d) the aggregate
number of shares of Company Common Stock issuable upon settlement of all Employee RSUs issued and outstanding as of immediately prior
to the Effective Time, (e) the aggregate number of shares of Company Common Stock issuable upon the exercise in full of all In-The-Money
Warrants issued and outstanding as of immediately prior to the Effective Time and (f) the Bonus Share Number.


 


“GAAP”
means generally accepted accounting principles in the United States as in effect from time to time.


 


“Global
Trade Laws” means the U.S. Export Administration Regulations; the U.S. International Traffic in Arms Regulations; the economic
sanctions rules and regulations administered by OFAC; U.S. Customs Regulations, EU Council Regulations on export controls, including
Nos. 428/2009, 267/2012; other EU Council sanctions regulations, as implemented in EU Member States; United Nations sanctions policies;
the Buy American Act of 1933; all relevant regulations made under any of the foregoing; and other applicable economic sanctions, export
control, or customs laws imposed by a relevant Governmental Authority.


 




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“Government
Order” means any order, writ, judgment, injunction, decree, stipulation, ruling, decision, verdict, determination or award
made, issued or entered by or with any Governmental Authority.


 


“Government
Sponsored Health Care Program” means any United States federal, state or local health care, reimbursement or waiver programs
administered or funded by a Governmental Authority under Title XVIII of the Social Security Act (the Medicare statute), Title XIX of
the Social Security Act (the Medicaid statute), TRICARE, or any other government sponsored health care program or health care payment
program financed in whole or in part by any United States federal, state or local government, including any federal managed Medicaid
or Medicare programs.


 


“Governmental
Authority” means any United States federal, state or local or any foreign government, or political subdivision thereof, or
any multinational organization or authority, or any other authority, agency or commission entitled to exercise any administrative, executive,
judicial, legislative, police, regulatory or taxing authority or power, any court or tribunal (or any department, bureau or division
thereof), or any mediator, arbitrator or arbitral body.


 


“Guarantee”
means, with respect to any Person, (a) any guarantee of the payment or performance of, or any contingent obligation in respect of, any
Indebtedness or other Liability of any other Person, (b) any other arrangement whereby credit is extended to any obligor (other than
such Person) on the basis of any promise or undertaking of such Person (i) to pay the Indebtedness or other Liability of such obligor,
(ii) to purchase any obligation owed by such obligor, (iii) to purchase or lease assets under circumstances that are designed to enable
such obligor to discharge one or more of its obligations or (iv) to maintain the capital, working capital, solvency or general financial
condition of such obligor and (c) any liability as a general partner of a partnership or as a venturer in a joint venture in respect
of Indebtedness or other Liabilities of such partnership or venture.


 


“Hazardous
Substance” means any pollutant, petroleum, or any fraction thereof, contaminant or toxic or hazardous material (including toxic
mold), substance or waste.


 


“Healthcare
Laws” means all Legal Requirements pertaining to healthcare regulatory matters applicable to the Company, including, but not
limited, to Legal Requirements relating to: (a) the licensure, certification, qualification or authority to transact the Business; (b)
the solicitation or acceptance of improper incentives involving persons operating in the health care industry; (c) the administration
of health care claims or benefits or processing or payment for health care services or products, including billing, coding, coding validation,
reimbursement, claims submission, collections and payment related to health insurance providers, health maintenance organizations and
Payment Programs; (d) the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; (e) any state insurance, health maintenance
organization or managed care Legal Requirements (including Legal Requirements relating to Medicaid programs); (f) state Legal Requirements
related to the corporate practice of medicine or other health care professions, professional fee-splitting and mental health providers
and coaches; (g) the Medicare Program Legal Requirements at Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395hhh,
including specifically, the Ethics in Patient Referrals Act, as amended, 42 U.S.C. § 1395nn; (h)


 




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Title
XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v; (i) the Federal Health Care Program Anti-Kickback Statute, 42 U.S.C.
§ 1320a-7b(b); (j) the False Claims Act, 31 U.S.C. §§ 3729-3733 (as amended); (k) the Program Fraud Civil Remedies Act
of 1986, 31 U.S.C. §§ 3801-3812; (l) the Anti-Kickback Act of 1986, 41 U.S.C. §§ 51-58; (m) the Civil Monetary Penalties
Law, 42 U.S.C. §§ 1320a-7a and 1320a-7b; (n) the Exclusion Laws, 42 U.S.C. § 1320a-7; (o) the Federal Health Care Fraud
Law (18 U.S.C. § 1347); (p) TRICARE, 10 U.S.C. § 1071; (q) the so-called federal “sunshine” law or Open Payments
law (42 U.S.C. § 1320a-7h), as well as any corollary state Legal Requirements governing disclosure of payments by pharmaceutical
or medical device manufacturers to health care professionals; (r) all state Legal Requirements governing the offer, payment, solicitation
or receipt of any remuneration in exchange for a referral, furnishing, arranging for the furnishing, lease, purchase, order, or recommendation
of any health care product or service; (s) the Patient Protection and Affordable Care Act 42 U.S.C. § 18001 et seq., as amended
by the Health Care and Education Reconciliation Act of 2010 (42 U.S.C. § 1305 et seq.); (t) HIPAA and applicable Privacy Obligations;
(u) the 21st Century Cures Act (Pub. L. No. 114-255) and its implementing regulations; (v) the CARES Act and (w) FDA Laws.


 


“HIPAA”
means the Health Insurance Portability and Accountability Act of 1996, including the Standards for Privacy of Individually Identifiable
Health Information (45 CFR Part 160 and Part 164, Subparts A, D and E), the Transactions and Code Set Standards (45 CFR Part 162), and
Security Standards for the Protection of Electronic Protected Health Information (45 CFR Part 164, Subparts A and C), and all other implementing
regulations in effect, and the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery
and Reinvestment Act of 2009 set forth at 42 USC § 17931 et seq., and all implementing regulations thereof.


 


“Indebtedness”
means, with respect to any Person, and without duplication, all Liabilities, including all obligations in respect of principal, accrued
interest, penalties, fees, guarantees, reimbursements, damages, costs of unwinding and premiums, of such Person (a) for borrowed money,
whether current or funded, fixed or contingent, secured or unsecured (including amounts outstanding under overdraft facilities), (b)
evidenced by notes, bonds, debentures, mortgages or other similar debt securities or Contractual Obligations, (c) in respect of “earn-out”
obligations and other obligations for the deferred purchase price of property, goods or services (other than trade payables or accruals
incurred in the Ordinary Course of Business), (d) for the capitalized liability under all capital leases of such Person (determined in
accordance with GAAP), (e) in respect of letters of credit and bankers’ acceptances, (f) for the Tax Liability Amount, (g) Contractual
Obligations relating to interest rate protection, hedging agreements, swap agreements and collar agreements, in each case, to the extent
payable if such Contractual Obligation is terminated at the Closing, (h) outstanding severance or termination obligations to any current
or former employee, officer, manager, director or independent contractor of the Company whose employment or engagement was terminated
prior to the Closing or whose termination of employment was effectuated prior to the Closing (together with the employer portion of all
Taxes arising therefrom), (i) the amount of any cash incentives, bonuses or commissions accrued but not yet paid prior to the Closing
owed to any current or former employee, officer, manager, director or independent contractor of the Company; provided that in
no event shall any such obligations with respect to a termination made at the express written request of Parent be included in


 




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Indebtedness,
(j) earned, accrued or otherwise payable bonuses or other incentive compensation owed to any current and former employee, officer, director
or independent contractor of the Company with respect to any period immediately prior to the Closing (together with the employer portion
of all Taxes arising therefrom (without regard to the ability to defer such Taxes under the CARES Act)), (k) any payroll Tax obligations
deferred under the CARES Act or otherwise in connection with the COVID-19, (l) unfunded deferred compensation obligations, (m) in the
nature of Guarantees, whether direct or indirect, of the obligations described in clauses (a) through (l) above of any other Person.


 


“Independent
Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing.


 


“Intellectual
Property Rights” means all rights, title, and interests in and to all proprietary rights of every kind and nature however denominated,
whether registered or unregistered, throughout the world, including:


 


(a)       patents,
copyrights, mask work rights, confidential information, trade secrets, database rights, data rights and all other proprietary rights
in Technology;


 


(b)       trademarks,
trade names, service marks, service names, brands, trade dress and logos, and the goodwill and activities associated therewith;


 


(c)       domain
names, social media accounts and handles, rights of privacy and publicity, and moral rights;


 


(d)       any
and all registrations, applications, recordings, licenses, common-law rights, statutory rights, and contractual rights relating to any
of the foregoing; and


 


(e)       all
Actions and rights to sue at law or in equity for any past or future infringement or other impairment of any of the foregoing, including
the right to receive all proceeds and damages therefrom, and all rights to obtain renewals, continuations, divisions, or other extensions
of legal protections pertaining thereto.


 


“Irish
GAAP” means generally accepted accounting principles in the Republic of Ireland as in effect from time to time.


 


“Irish
Subsidiary” means SilverCloud Health Limited.


 


“IT
Assets” means computers, servers, workstations, routers, hubs, switches, data communications lines and all other information
technology equipment.


 


“Legal
Requirement” means any United States federal, state or local or any foreign law, statute, standard, ordinance, code, rule,
regulation, resolution or promulgation, or any Government Order, or any Permit granted under any of the foregoing, or any similar provision
having the force or effect of law.


 




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“Letter
of Transmittal” means a letter of transmittal substantially in the form of Exhibit I.


 


“Liability”
means, with respect to any Person, any liability, commitment, or obligation of such Person whether known or unknown, whether asserted
or unasserted, whether determined, determinable or otherwise, whether absolute or contingent, whether accrued or unaccrued, whether liquidated
or unliquidated, whether directly incurred or consequential, whether due or to become due, whether arising in the past, present or future
and whether or not required under GAAP to be accrued on the financial statements of such Person, including those arising under any Contractual
Obligation, Action or Government Order.


 


“Material
Adverse Effect” means any event, change, fact, condition, circumstance, development, occurrence, result or effect (each, an
“Effect”) that, when considered either individually or in the aggregate together with any other Effect, has had, or
would reasonably be expected to have, a material adverse effect on (A) the financial condition, business, assets, properties or results
of operations of the Company Group taken as a whole or (B) the ability of the Company, or any member of the Company Group, to perform
its obligations hereunder or consummate the Contemplated Transactions on a timely basis other than the following: (i) Effects after the
date hereof generally affecting the Company’s industry in the United States or the European Union, (ii) events, changes, facts,
conditions, circumstances or occurrences generally affecting the economy or the debt, credit or securities markets (including any decline
in the price of any security or any market index), (iii) any outbreak or escalation of hostilities or declared or undeclared acts of
war or terrorism, or any epidemic, pandemic or disease outbreak (including, but not limited to, the COVID-19 pandemic), (iv) changes
or proposed changes in Legal Requirements or Privacy Obligations, (v) changes or proposed changes in GAAP (or interpretations thereof),
(vi) Effects resulting from actions taken (or omitted to be taken) by the Company pursuant to this Agreement, including which Parent
has expressly requested in writing or to which Parent has expressly consented in writing and including any actions taken to meet the
closing conditions set forth in Article VI; (vii) any failure of the Company to meet projections, forecasts or revenue or earning
predictions for any period (provided that the underlying causes of such failure may, to the extent applicable, be considered in determining
whether there has been, or is reasonably be expected to be, a Material Adverse Effect); or (viii) the execution, announcement, pendency,
performance or consummation of this Agreement, the Contemplated Transactions, or the identity of Parent (including the impact on or any
loss of employees, customers, suppliers, or other business relationships resulting from any of the foregoing, and including, for the
avoidance of doubt, any event, change or effect resulting or arising from or in connection with any actions required to be taken pursuant
to Section 5.02); but only to the extent, in the case of the foregoing clauses (i), (ii), (iii), (iv), and (v), such Effects do
not have a materially disproportionate effect on the Company Group as compared to other industry participants.


 


“Merger
Consideration” means (a) One Hundred Five Million and no/100 Dollars ($105,000,000.00), plus (b) Closing Cash,
plus (c) the Stock Consideration, minus (d) Closing Indebtedness, minus (e) Company Transaction
Expenses, plus (f) the Net Working Capital Excess (if any), minus (g) the Net Working Capital Shortfall (if
any), minus (h) the Escrow Amount, and minus (i) the Securityholder Representative Reserve, plus
(j) the Unaccredited Investor Additional Cash Amount.


 




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“Net
Working Capital Calculation Schedule” means the calculation of Closing Net Working Capital attached as Annex I hereto.


 


“Net
Working Capital Excess” means the amount by which the Closing Net Working Capital exceeds the Net Working Capital Target.


 


“Net
Working Capital Shortfall” means the amount by which the Closing Net Working Capital is less than the Net Working Capital Target.


 


“Net
Working Capital Target” means $2,051,000.


 


“OFAC”
means the U.S. Treasury Department’s Office of Foreign Assets Control.


 


“Option
Cancellation Agreement” means an agreement signed by a holder of Vested Options acknowledging cancellation of all Vested Options
held by such holder in a form to be reasonably agreed to by the Parties from each Person who owns Vested Options set forth in Annex
III hereto.


 


“Ordinary
Course of Business” means an action taken by any Person in the ordinary course of such Person’s business that is consistent
with the past customs and practices of such Person (including past practice with respect to quantity, amount, magnitude and frequency,
standard employment and payroll policies and past practice with respect to management of working capital and the making of capital expenditures)
and that is taken in the ordinary course of the normal day-to-day operations of such Person.


 


“Organizational
Documents” means, with respect to any Person (other than an individual), (a) the certificate or articles of incorporation,
formation or organization and any joint venture, limited liability company, operating or partnership agreement and other similar documents
adopted or filed in connection with the creation, formation or organization of such Person and (b) all by-laws, voting agreements and
similar documents, instruments or agreements relating to the organization or governance of such Person, in each case, as amended or supplemented.


 


“Parent
Class A Common Stock” means the Class A Common Stock of the Parent, par value $0.01 per share.


 


“Paying
Agent” means Acquiom Financial LLC.


 


“Paying
Agent Agreement” means the Paying Agent Agreement among Parent, the Securityholder Representative and the Paying Agent substantially
in the form of Exhibit E.


 


“Payment
Programs” means any Government Sponsored Health Care Program, and any successor program, and all other third-party health care
benefit plans and programs (including those offered or administered by health maintenance organizations, preferred provider organizations,
managed care organizations, commercial payors and any Medicaid or state waiver programs and health insurance providers).


 




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“Permits”
means, with respect to any Person, any license, franchise, permit, consent, clearance, registration, product listing, certification,
approval, right, privilege, accreditation, registration, certificate or other similar authorization issued by, or otherwise granted by,
any Governmental Authority to which or by which such Person is subject or bound or to which or by which any property, business, operation
or right of such Person is subject or bound.


 


“Permitted
Encumbrance” means (a) statutory liens for Taxes not yet due and payable or the amount or validity of which is being contested
in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP, (b) mechanics’,
materialmen’s, carriers’, workers’, repairers’ and similar statutory liens arising or incurred in the Ordinary
Course of Business the existence of which would not constitute an event of default under, or breach of, a Real Property Lease and the
Liabilities of any member of the Company Group in respect of which are not overdue or otherwise in default, (c) liens to secure landlords,
lessors or renters under leases or rental agreements (to the extent such member of the Company Group is not in default under such lease
or rental agreement) and (d) licenses or other rights granted pursuant to IP Contracts made in the ordinary course of business.


 


“Person”
means any individual or any corporation, association, general or limited partnership, limited liability company, joint venture, joint
stock or other company, business trust, trust, Union, unincorporated organization, firm, organization, Governmental Authority or other
entity of any kind (whether or not a legal entity).


 


“Personal
Information” means any data or information in any form that, alone or in combination with other information reasonably accessible
to the Company, may be linked or relates to an identifiable natural individual, household, browser, or device, and any other information
that constitutes personal data or personal information under any Privacy Obligation, including without limitation Protected Health Information
under HIPAA.


 


“Pre-Closing
Tax Period” means any taxable period ending on or before the Closing Date and the portion of any Straddle Period ending on
and including the Closing Date.


 


“Predecessor”
means, with respect to any specified Person, (a) any other Person that has ever merged or consolidated with or into such specified Person
or (b) any other Person all or substantially all of whose assets has ever been acquired by such specified Person (whether by purchase,
upon liquidation or otherwise).


 


“Privacy
Obligations” means all applicable Legal Requirements, Contractual Obligations, self-regulatory standards, or written policies
or terms of use of the Company Group that are related to privacy, information security, data protection, breach, or Processing of Personal
Information, including without limitation HIPAA, the European Union General Data Protection Regulation (Regulation (EU) 2016/679), the
European Union ePrivacy Directive (Directive 2002/58/EC) and applicable implementing laws, the Federal Trade Commission Act, the Controlling
the Assault of Non-Solicited Pornography And Marketing Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud
and Abuse Prevention Act, Children’s Online Privacy Protection Act, the Computer Fraud and Abuse Act, the Gramm Leach Bliley Act,
the Fair Credit


 




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Reporting
Act, the Fair and Accurate Credit Transaction Act, the Identity Theft Red Flags Rule, state data security laws, state unfair or deceptive
trade practices laws, state biometric privacy acts, state social security number protection laws, state mental health, substance abuse
and AIDS confidentiality laws, state data breach notification laws, and Canada’s Personal Information Protection and Electronic
Documents Act, the Payment Card Industry Data Security Standards, the Payment Application Data Security Standards, any Legal Requirements
concerning requirements for website and mobile application privacy policies and practices, data or web scraping, cybersecurity disclosures
in public filings, call or electronic monitoring or recording or any outbound communications, and any Legal Requirements requiring a
Person to be notified of any situation where there is, or there is reason to believe there has been, a loss, misuse, unauthorized access,
or unauthorized acquisition of Personal Information, in each case as and to the extent applicable to the operation of the Company’s
Business.


 


“Pro
Rata Portion” means, with respect to a particular Effective Time Holder, an amount equal to the quotient obtained by dividing
(a) the sum of (i) the number of shares of Company Common Stock held by such Effective Time Holder immediately prior to the Effective
Time; (ii) the number of shares of Company Common Stock issuable as if the Company Preferred Stock held by such Effective Time Holder
converted to Company Common Stock immediately prior to the Effective Time; (iii) the number of shares of Company Common Stock issuable
upon exercise of the In-The-Money Options held by such Effective Time Holder immediately prior to the Effective Time; and (iv) the number
of shares of Company Common Stock issuable upon exercise of the In-The-Money Warrants held by such Effective Time Holder immediately
prior to the Effective Time, by (b) the Fully Diluted Company Share Number.


 


“Processing”
means any operation or set of operations which is performed on Personal Information or other data, whether or not by automated means,
and includes receipt, access, acquisition, collection, recording, organization, compilation, structuring, storage, adaptation, alteration,
retrieval, consultation, use, disclosure, transfer, transmission, dissemination, making available, alignment or combination, restriction,
disposal, erasure or destruction.


 


“R&W
Insurance Policy” means the policy of representations and warranties insurance that is underwritten and administered by Euclid
Transactional, LLC and obtained by Parent, bound as of the date hereof. The R&W Insurance Policy is attached hereto as Exhibit
F in substantially final form.


 


“Representative”
means, with respect to any Person, any director, officer, employee, agent, manager, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.


 


“Restricted
Country” means any country or geographic region subject to comprehensive economic sanctions administered by the United States
within the past five years (including Cuba, Iran, North Korea, Sudan, Syria, and the Crimea region).


 




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“Restricted
Party” means any (a) Person on one or more of the Restricted Party Lists, or (b) any Person owned or controlled by, or acting
on behalf of, a Person on one or more of the Restricted Party Lists.


 


“Restricted
Party Lists” include the list of sanctioned entities maintained by the United Nations; the Specially Designated Nationals and
Blocked Persons List, the Foreign Sanctions Evaders List and the Sectoral Sanctions Identifications List, all administered by OFAC; the
U.S. Denied Persons List, the U.S. Entity List, and the U.S. Unverified List, all administered by the U.S. Department of Commerce; the
consolidated list of Persons subject to EU Financial Sanctions, as implemented by the EU Common Foreign & Security Policy; and similar
lists of restricted parties maintained by other relevant Governmental Authorities.


 


“Retention
Escrow Amount” means $1,050,000.


 


“Retention
Escrow Fund” means an escrow fund established pursuant to the Escrow Agreement, compromising the Retention Escrow Amount.


 


“RSU
Equity Plan” means the Silver Cloud Health Holdings Inc. Restricted Stock Unit Plan.


 


“Security
Breach” means any (a) unauthorized access, acquisition, interruption of access or other processing, alteration or modification,
loss, theft, corruption or other unauthorized processing of Personal Information or Sensitive Data; (b) inadvertent, unauthorized or
unlawful sale or rental of Personal Information; (c) a breach as defined under HIPAA (45 C.F.R. § 164.402); (d) a phishing, ransomware,
denial of service (DoS) or other cyberattack that results in a monetary loss or a business disruption; or (e) other unauthorized access
to, use of, or interruption of any IT Asset.


 


“Senior
Employee Team Member” means Ken Cahill.


 


“Sensitive
Data” means (a) all Personal Information and (b) other confidential or proprietary Business information or trade secret information.


 


“Securityholder
Representative Reserve” means $500,000.


 


“Series
A Preferred Stock” means the Series A-1 Preferred Stock and the Series A-2 Preferred Stock.


 


“Series
A-1 Preferred Stock” means the Company’s Series A-1 Preferred Stock, par value $0.0001 per share.


 


“Series
A-2 Preferred Stock” means the Company’s Series A-2 Preferred Stock, par value $0.0001 per share.


 


“Series
B Preferred Stock” means the Company’s Series B Preferred Stock, par value $0.0001 per share.


 




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“Series
Seed-1 Preferred Stock” means the Company’s Series Seed-1 Preferred Stock, par value $0.0001 per share.


 


“Series
Seed-2 Preferred Stock” means the Company’s Series Seed-2 Preferred Stock, par value $0.0001 per share.


 


“Stock
Consideration” means 8,890,620 shares of Parent Class A Common Stock, which the parties agree has an aggregate value of an
amount equal to (a) One Hundred Five Million and no/100 Dollars ($105,000,000.00) minus (b) the Unaccredited Investor Additional
Cash Amount; provided, that such number of shares of Parent Class A Common Stock may be adjusted pursuant to Section 2.05(c).


 


“Stock
Consideration Pro Rata Portion” means, with respect to a particular Accredited Effective Time Holder, an amount equal to the
quotient obtained by dividing (a) the aggregate amount payable to such Accredited Effective Time Holder under Section
2.05(a)(i) through Section 2.05(a)(viii) and Section 2.05(b), by (b) the aggregate amount payable to all Accredited
Effective Time Holders under Section 2.05(a)(i) through Section 2.05(a)(viii) and Section 2.05(b).


 


“Subscription
Agreement” means the Subscription Agreement between Parent and each of the Accredited Effective Time Holders substantially
in the form of Exhibit G.


 


“Subsidiary”
means, with respect to any specified Person, any other Person of which such specified Person, directly or indirectly through one or more
Subsidiaries, (a) owns at least 50% of the outstanding Equity Interests entitled to vote generally in the election of the Company Board
or similar governing body of such other Person, or (b) has the power to generally direct the business and policies of that other Person,
whether by contract or as a general partner, managing member, manager, joint venturer, agent or otherwise.


 


“Systems”
means all software, applications, hardware, networks, electronics, platforms, servers, interfaces, databases, websites and related Technology
and services that are owned or purported to be owned by the Company or used by or otherwise relied on by the Company Group.


 


“Tax”
or “Taxes” means (a) any and all federal, state, local, or foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding,
social security (or similar, including FICA), unemployment, disability, real property, personal property, escheat, abandoned or unclaimed
property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind or any
charge of any kind in the nature of (or similar to) taxes whatsoever, including any interest, penalty, or addition thereto, whether disputed
or not and (b) any Liability for the payment of any amounts of the type described in clause (a) of this definition as a result of being
a member of an affiliated, consolidated, combined or unitary group for any period, as a result of any tax sharing or tax allocation agreement,
in each case, other than commercial agreements the primary purpose of which does not relate to Taxes, or as a result of being liable
for another person’s taxes as a transferee or successor, by Contractual Obligation (other than commercial agreements the primary
purpose of which does not relate to Taxes).


 




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“Tax
Liability Amount” means an amount (not less than $0 with respect to any jurisdiction) equal to the sum of the unpaid Taxes
of the Company Group, computed for each Pre-Closing Tax Period and the portion of each Straddle Period ending at the end of the Closing
Date, as determined in accordance with the principles set forth in Section 10.02 and, unless otherwise required by applicable
Legal Requirements, calculated in accordance with the past practice of the Company Group in preparing Tax Returns (including reporting
positions, elections and accounting methods) and only with respect to those jurisdictions in which the Company has previously filed Tax
Returns for Taxes and any jurisdictions in which the Company has commenced operations since January, 1 2021; provided notwithstanding
anything in this Agreement to the contrary, for purposes of calculating such liability for Taxes; (i) any overpayment or credit of Taxes
(including estimated Taxes) that will be credited against or reduce a particular liability for income Taxes shall be taken into account
as permitted by applicable Legal Requirements; (ii) if applicable, seventy percent (70%) or any success-based fees of the Company Group
(as defined in Treasury Regulations Section 1.263(a)-5(f)) shall be treated as deductible in accordance with Rev. Proc. 2011-29, (iii)
any income Taxes arising from transactions outside of the ordinary course of business occurring on the Closing Date after the time of
the Closing entered into by or at the direction of Parent (or any Affiliate thereof (including for avoidance of doubt, following the
Closing, the Company Group)) (other than any transactions required by this Agreement); (iv) the applicable taxable period for each member
of the Company Group that is a “controlled foreign corporation” within the meaning of Section 957 of the Code shall be deemed
to end on the Closing Date in an interim closing of the books; (v) any liabilities for accruals or reserves properly established under
GAAP methodologies that require the accrual for contingent income Taxes or with respect to uncertain Tax positions shall be excluded;
and (vi) any Tax liabilities or assets that are included in Closing Net Working Capital shall be excluded.


 


“Tax
Return” means any return, notice, form, election, estimate, declaration, report, claim for refund or information return or
statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.


 


“Technology”
means all inventions, works, discoveries, innovations, know-how, information (including ideas, research and development, formulas, algorithms,
compositions, processes and techniques, data, designs, drawings, specifications, customer and supplier lists, pricing and cost information,
business and marketing plans and proposals, graphics, illustrations, artwork, documentation, and manuals), databases, computer software,
firmware, computer hardware, integrated circuits and integrated circuit masks, electronic, electrical, and mechanical equipment, and
all other forms of technology, including improvements, modifications, works in process, derivatives, or changes, whether tangible or
intangible, embodied in any form, whether or not protectable or protected by patent, copyright, mask work right, trade secret law, or
otherwise, and all documents and other materials recording any of the foregoing.


 


“Treasury
Regulations” means the regulations promulgated under the Code.


 


“Unaccredited
Investor Additional Cash Amount” means an amount in cash equal to 50% of the aggregate cash amount paid to Unaccredited Effective
Time Holders pursuant to Section 2.05(c)(i). For the avoidance of doubt, Unaccredited Investor Additional Cash Amount as used
in


 




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the
definitions of “Closing Cash Consideration,” “Estimated Closing Cash Consideration,” “Merger Consideration,”
and “Stock Consideration” shall be deemed $0 for purposes of the initial calculations of the payments to the Effective Time
Holders pursuant to Section 2.05(a)(i) through Section 2.05(a)(viii) and Section 2.05(b) with all Effective Time
Holders initially being treated as Accredited Effective Time Holders for purposes of determining the Estimated Closing Cash Consideration
and Stock Consideration that would be payable if all Effective Time Holders were Accredited Effective Time Holders. Each Unaccredited
Effective Time Holder’s Pro Rata Portion of the Stock Consideration shall then be paid in cash pursuant to Section 2.05(c)(i)
with such definition of Unaccredited Investor Additional Cash Amount being updated to reflect 50% of the aggregate cash payment to
the Unaccredited Effective Time Holders.


 


“Warrant
Cancellation Agreement” means an agreement signed by a holder of In-The-Money Warrants acknowledging cancellation of all In-The-Money
Warrants held by such holder in a form to be reasonably agreed to by the Parties from each Person who owns In-The-Money Warrants set
forth in Annex III hereto.


 


Section
1.02     Certain Matters of Construction.


 


(a)       The
parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.


 


(b)       Section
and subsection headings are not to be considered part of this Agreement, are included solely for convenience, are not intended to be
full or accurate descriptions of the content of the Sections or subsections of this Agreement and shall not affect the construction hereof.


 


(c)       Except
as otherwise explicitly specified to the contrary herein, (i) the words “hereof,” “herein,” “hereunder”
and words of similar import shall refer to this Agreement as a whole and not to any particular Section or subsection of this Agreement
and reference to a particular Section of this Agreement shall include all subsections thereof, (ii) references to a Section, Exhibit,
Annex or Schedule means a Section of, or Exhibit, Annex or Schedule to this Agreement, unless another agreement is specified, (iii) definitions
shall be equally applicable to both the singular and plural forms of the terms defined, and references to the masculine, feminine or
neuter gender shall include each other gender, (iv) the word “including” means including without limitation, (v) any reference
to “$” or “dollars” means United States dollars, (vi) any reference to a “day” or a number of “days”
(without explicit qualification by “Business”) shall mean a calendar day or number of calendar days and (vii) references
to a particular statute or regulation include all rules and regulations thereunder and any successor statute, rule or regulation, in
each case as amended or otherwise modified from time to time.


 


(d)       Only
that information which has been made available to Parent in the “virtual data room” created for purposes of this Agreement
and the Contemplated Transactions


 




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(the
“Data Room”) as such Data Room existed as of one (1) Business Day prior to the date hereof shall be considered to
have been “delivered” or “made available” to Parent for purposes of this Agreement.


 


(e)       Unless
the context clearly requires otherwise, when used herein “or” shall not be exclusive (i.e., “or” shall
mean “and/or”).


 


(f)       The
measure of a period of one month or year for purposes of this Agreement will be the date of the following month or year corresponding
to the starting date; and, if no corresponding date exists, then the end date of such period being measured will be the next actual date
of the following month or year (for example, one month following February 18 is March 18 and one month following March 31 is May 1).
Except as otherwise specifically indicated, for purposes of measuring the beginning and ending of time periods in this Agreement (including
for purposes of “Business Day” and for hours in a day or Business Day), the time at which a thing, occurrence or event shall
begin or end shall be deemed to occur in the time zone in which Boston, Massachusetts is located.


 


(g)       For
the convenience of the parties an index of additional terms defined throughout this Agreement has been included at the end of this Agreement
but does not form a part of this Agreement.


 


Article
II

DESCRIPTION OF TRANSACTION.


 


Section
2.01     Merger of Merger Sub into the Company; Subsequent Merger.


 


(a)       Upon
the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined in Section 2.02(b)). Merger
Sub shall be merged with and into the Company. By virtue of the Merger, at the Effective Time, the separate existence of Merger Sub shall
cease and the Company shall continue as the surviving corporation in the Merger and a direct wholly owned subsidiary of Parent (the “Initial
Surviving Corporation”) and shall succeed to and assume all the rights and obligations of Merger Sub in accordance with the
DGCL.


 


(b)       Immediately
following the Effective Time and in accordance with the DGCL and the DLLCA, Parent will cause the Initial Surviving Corporation to merge
with and into Sister Subsidiary, an entity taxed for federal income tax purposes as a disregarded entity of Parent, and the separate
corporate existence of the Initial Surviving Corporation shall thereupon cease, and Sister Subsidiary shall be the surviving entity in
the Subsequent Merger, and shall succeed to and shall by virtue of the Subsequent Merger continue its existence under the laws of the
State of Delaware as a direct wholly-owned subsidiary of Parent. Sister Subsidiary, as the surviving entity of the Subsequent Merger,
is referred to herein as the “Final Surviving Entity.”


 


(c)       Effect
of the Merger and Subsequent Merger.


 


(i)       At
the Effective Time, the Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL. Without
limiting the generality of


 




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the
foregoing, and subject thereto, from and after the Effective Time, all the property, rights, privileges, powers and franchises of each
of the Company and Merger Sub shall vest in the Initial Surviving Corporation and all debts, liabilities, obligations, restrictions,
disabilities and duties of each of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities
and duties of the Initial Surviving Corporation.


 


(ii)       At
the effective time of the Subsequent Merger, the effect of the Subsequent Merger shall be as set forth in this Agreement and as provided
in the applicable provisions of the DGCL and the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the
effective time of the Subsequent Merger all the property, rights, privileges, powers and franchises of the Initial Surviving Corporation
and the Sister Subsidiary shall vest in the Final Surviving Entity, and all debts, liabilities, obligations, restrictions, disabilities
and duties of the Initial Surviving Corporation and the Sister Subsidiary shall become the debts, liabilities, obligations, restrictions,
disabilities and duties of the Final Surviving Entity.


 


(d)       Organizational
Documents.


 


(i)       The
certificate of incorporation of the Initial Surviving Corporation shall be amended and restated as of the Effective Time to conform to
the certificate of incorporation of the Merger Sub as in effect immediately prior to the Effective Time and the bylaws of the Initial
Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub as in effect immediately
prior to the Effective Time, in each case, until thereafter changed or amended as provided therein or by applicable Legal Requirements.
The directors and officers of the Initial Surviving Corporation immediately after the Effective Time shall be those individuals designated
by Parent in its sole discretion until each such director’s or officer’s successor is duly elected or appointed and qualified,
or until the earlier of their death, resignation or removal.


 


(ii)       The
certificate of formation of Sister Subsidiary as in effect immediately prior to the effective time of the Subsequent Merger shall be
the certificate of formation of the Final Surviving Entity in the Subsequent Merger until thereafter amended in accordance with the applicable
provisions of the DLLCA and such certificate of formation. The limited liability company agreement of Sister Subsidiary as in
effect immediately prior to the effective time of the Subsequent Merger, shall be the limited liability company agreement of the Final
Surviving Entity until thereafter amended in accordance with the applicable provisions of the DLLCA, the certificate of formation of
the Final Surviving Entity and such limited liability company agreement. The directors and officers of the Initial Surviving Corporation
immediately after the effective time of the Subsequent Merger shall be the initial directors and officers of the Final Surviving Entity
until each such director’s or officer’s successor is duly elected or appointed and qualified, or until the earlier of their
death, resignation or removal.


 


Section
2.02     Closing; Effective Time.


 


(a)       The
consummation of the transactions contemplated by this Agreement (the “Closing”) shall be conducted remotely via the
electronic exchange of documents and signatures


 




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no
later than two (2) Business Days after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in
Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction
or waiver of such conditions) or on such other date and time as mutually agreed upon by Parent and the Company. The date on which the
Closing is held is herein referred to as the “Closing Date.”


 


(b)       On
the Closing Date and subject to the terms of this Agreement, the Company and Merger Sub shall (i) execute a certificate of merger in
a form mutually acceptable to Parent and the Company (the “Certificate of Merger”) in accordance with the relevant
provisions of the DGCL. The Merger shall become effective at the time of the filing of such Certificate of Merger with the Secretary
of State of the State of Delaware (the time as of which the Merger becomes effective being referred to as the “Effective Time”).


 


(c)       Immediately
following the Effective Time, Parent shall cause the Subsequent Merger to be consummated by filing a certificate of merger with the Secretary
of State of the State of Delaware, in such form as is required by, and executed in accordance with, the relevant provisions of the DGCL
and the DLLCA, and the Subsequent Merger shall become effective upon such filing of such certificate of merger with the Secretary of
State of the State of Delaware.


 


(d)       At
the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder
of the Company:


 


(i)       except
as provided in clause “(viii)” below, each share of Series B Preferred Stock issued and outstanding immediately prior to
the Effective Time (other than any Excluded Shares), shall be canceled, extinguished and automatically converted into the right to receive:
(A) the Closing Common Per Share Merger Consideration; and (B) when, as and if and to the extent payable, the Additional Merger Consideration,
in each case, multiplied by the number of shares of Company Common Stock into which such share of Series B Preferred Stock is
convertible at the Effective Time (without interest and net of any applicable withholding);


 


(ii)       except
as provided in clause “(viii)” below, each share of Series A-1 Preferred Stock issued and outstanding immediately prior to
the Effective Time (other than any Excluded Shares), shall be canceled, extinguished and automatically converted into the right to receive:
(A) the Closing Common Per Share Merger Consideration; and (B) when, as and if and to the extent payable, the Additional Merger Consideration,
in each case, multiplied by the number of shares of Company Common Stock into which such share of Series A-1 Preferred Stock is
convertible at the Effective Time (without interest and net of any applicable withholding);


 


(iii)       except
as provided in clause “(viii)” below, each share of Series A-2 Preferred Stock issued and outstanding immediately prior to
the Effective Time (other than any Excluded Shares), shall be canceled, extinguished and automatically converted into the right to receive:
(A) the Closing Common Per Share Merger Consideration; and (B) when, as and if and to the extent payable, the Additional Merger Consideration,
in each case, multiplied by the number


 




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of
shares of Company Common Stock into which such share of Series A-2 Preferred Stock is convertible at the Effective Time (without interest
and net of any applicable withholding);


 


(iv)       except
as provided in clause “(viii)” below, each share of Series Seed-1 Preferred Stock issued and outstanding immediately prior
to the Effective Time (other than any Excluded Shares), shall be canceled, extinguished and automatically converted into the right to
receive: (A) the Closing Common Per Share Merger Consideration; and (B) when, as and if and to the extent payable, the Additional Merger
Consideration, in each case, multiplied by the number of shares of Company Common Stock into which such share of Series B Preferred
Stock is convertible at the Effective Time (without interest and net of any applicable withholding);


 


(v)       except
as provided in clause “(viii)” below, each share of Series Seed-2 Preferred Stock issued and outstanding immediately prior
to the Effective Time (other than any Excluded Shares), shall be canceled, extinguished and automatically converted into the right to
receive: (A) the Closing Common Per Share Merger Consideration; and (B) when, as and if and to the extent payable, the Additional Merger
Consideration, in each case, multiplied by the number of shares of Company Common Stock into which such share of Series B Preferred
Stock is convertible at the Effective Time (without interest and net of any applicable withholding);


 


(vi)       except
as provided in clause “(viii)” below, each share of Company Common Stock outstanding immediately prior to the Effective Time
that is not a Dissenting Share shall be converted into the right to receive the Closing Common Per Share Merger Consideration and the
Additional Per Share Merger Consideration, if any, and such share of Company Common Stock after such conversion shall automatically be
canceled and retired and shall cease to exist;


 


(vii)       each
share of the common stock, $0.01 par value, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into
one validly issued, fully paid and non-assessable share of common stock, $0.01 par value, of the Initial Surviving Corporation and such
shares, as converted, shall constitute the only outstanding shares of capital stock of the Initial Surviving Corporation;


 


(viii)       each
share of Company Capital Stock held by the Company (or held in the Company’s treasury), or by Parent, Merger Sub or any other wholly
owned Subsidiary of Parent immediately prior to the Effective Time (collectively, together with any Dissenting Shares, the “Excluded
Shares”) shall be canceled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor.


 


(e)       At
the effective time of the Subsequent Merger, by virtue of the Subsequent Merger and without any further action on the part of the Initial
Surviving Corporation, Parent, Sister Subsidiary or any holder of any capital stock of the Initial Surviving Corporation, Parent or Sister
Subsidiary, each share of common stock, par value $0.01 per share, of the Initial Surviving Corporation issued and outstanding immediately
prior to the effective time of the Subsequent Merger shall continue as one limited liability company interest of the Final Surviving
Entity, which shall constitute the only outstanding equity of the Final Surviving Entity. At the effective time of the Subsequent Merger,
any other equity of the Sister Subsidiary shall automatically be canceled


 




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and
retired and shall cease to be outstanding, and no consideration shall be delivered or deliverable in exchange therefor.


 


(f)       Fractional
Shares. No certificates or scrip representing fractional shares of Parent Class A Common Stock shall be issued upon the conversion
of Company Capital Stock pursuant Section 2.02(d) and Section 2.05, the cancellation of In-The-Money Options pursuant to
Section 2.02(g) and Section 2.05, the cancellation of In-The-Money Warrants pursuant to Section 2.02(i) and Section
2.05, or the cancellation of Employee RSUs pursuant to Section 2.02(j) and Section 2.05 and such fractional share interests
shall not entitle the owner thereof to vote or to any other rights of a holder of shares of Parent Class A Common Stock. Notwithstanding
any other provision of this Agreement, each holder of shares of Company Capital Stock converted or In-The-Money Warrants, In-The-Money
Options or Employee RSUs canceled pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of Parent
Class A Common Stock in accordance with Section 2.05 (after taking into account all shares of Company Capital Stock exchanged
or In-The-Money Warrants, In-The-Money Options or Employee RSUs canceled by such holder) shall in lieu thereof, receive in cash (rounded
to the nearest whole cent), without interest, an amount equal to such fractional amount multiplied by the volume weighted average price
of Parent Class A Common Stock on the New York Stock Exchange (“NYSE”) over the thirty day period prior to the date
hereof.


 


(g)       Accredited
Effective Time Holder Shares. Each Effective Time Holder that has delivered to the Paying Agent at least three (3) Business Days
prior to Closing an Accredited Investor Questionnaire in which such Effective Time Holder has confirmed, to Parent’s reasonable
satisfaction, that such Effective Time Holder is an “accredited investor” within the meaning of Rule 501(a) of Regulation
D under the 1933 Act shall be an “Accredited Effective Time Holder.” Each Effective Time Holder who is not an Accredited
Effective Time Holder shall be an “Unaccredited Effective Time Holder.” Upon the terms and subject to the conditions
set forth herein, at the Closing, each Accredited Effective Time Holder shall receive the number of shares of Parent
Class A Common Stock indicated across from such Accredited Effective Time Holder’s name on the Consideration Spreadsheet,
the aggregate number of shares of which shall be equal to the Stock Consideration (collectively, the “Accredited Effective Time
Holder Shares”). With respect to the Accredited Effective Time Holder Shares, each of the Accredited Effective Time Holders
will be subject to the applicable terms of and have the applicable rights provided in a Subscription Agreement.


 


(h)       Treatment
of Company Options. Pursuant to the terms of the Equity Plan, the Company Board has approved the accelerated vesting as of immediately
prior to the Effective Time of each Company Option that is outstanding and exercisable, but not fully vested, as of such time (the “Vesting
Acceleration”). Each Company Option or a portion thereof outstanding immediately prior to the Effective Time that is vested,
outstanding and exercisable immediately prior to the Effective Time (after giving effect to the Vesting Acceleration) shall be a “Vested
Option”. Each Vested Option with an exercise price per share that is less than the Closing Option Per Share Merger Consideration
(each, an “In-The-Money Option”) and in respect of which an Option Cancellation Agreement, if applicable, and Subscription
Agreement has been delivered shall be converted with respect to each share of Company Common Stock subject to such In-The-


 




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Money
Option into the right to receive, upon delivery of a duly executed and completed Option Cancellation Agreement, if applicable, and Subscription
Agreement in the manner provided in Section 2.05(a), Section 2.05(b) and Section 2.05(c), the Closing Option Per
Share Merger Consideration and the Additional Per Share Merger Consideration, if any, and after such conversion such Company Option shall
automatically be canceled and retired and shall cease to exist. The aggregate amount paid or payable in respect of the cancellation of
the In-The-Money Options as set forth in this Section 2.02(h) is referred to herein as the “Option Consideration.”


 


(i)       Treatment
of Company Warrants. Each Company Warrant or a portion thereof outstanding immediately prior to the Effective Time that is vested,
outstanding and exercisable immediately prior to the Effective Time shall be a “Vested Warrant”. Each Vested Warrant
with an exercise price per share that is less than the Closing Warrant Per Share Merger Consideration (each, an “In-The-Money
Warrant”) and in respect of which a Warrant Cancellation Agreement and Subscription Agreement has been delivered shall be converted
with respect to each share of Company Common Stock subject to such In-The-Money Warrant into the right to receive, upon delivery of a
duly executed and completed Warrant Cancellation Agreement and Subscription Agreement in the manner provided in Section 2.05(a),
the Closing Warrant Per Share Merger Consideration and the Additional Per Share Merger Consideration, if any, and after such conversion
such In-The- Money Warrant shall automatically be canceled and retired and shall cease to exist.


 


(j)       Treatment
of Employee RSUs. Each Employee RSU held by the employees of the Company Group set forth on Schedule 2.02(j) shall (i) become
vested as of immediately prior to the Effective Time in connection with, or as a result of, the consummation of the Merger and the other
transactions contemplated by this Agreement, (ii) be settled with the issuance of Company Common Stock which shares of Company Common
Stock will be converted into the right to receive the Closing Common Per Share Merger Consideration and the Additional Per Share Merger
Consideration, if any, and such share of Company Common Stock after such conversion shall automatically be canceled and retired and (iii)
cease to exist.


 


(k)       Treatment
of Bonus Awards. Each Bonus Award held by the employees of the Company Group set forth on Schedule 2.02(k) (the “Bonus
Holders”) shall (i) become vested as of immediately prior to the Effective Time in connection with, or as a result of, the
consummation of the Merger and the other transactions contemplated by this Agreement; provided, that no Bonus Holder shall be
entitled to any payment with respect to a Bonus Award unless such individual remains employed with Parent or its Affiliates through the
applicable payment date, as specified in Section 2.10, and (ii) be distributed pursuant to the terms of Section 2.10.


 


(l)       With
respect to any holder of Company Capital Stock, In-The-Money Options and/or In-The-Money Warrants, the portion of the Merger Consideration
receivable by such holder under this Agreement shall be aggregated for all shares of Company Capital Stock, all shares of Company Common
Stock subject to the In-The-Money Options and/or all shares of Company Common Stock subject to the In-The-Money Warrants held, in each
case, by such holder, as applicable, and following such aggregation, any fractional cents shall be rounded to the nearest whole cent.


 




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(m)       It
is understood that the cash exercise prices payable upon exercise in full of all In-The-Money Options and In-The-Money Warrants held
by all holders of In-The-Money Options and In-The-Money Warrants, as applicable, issued and outstanding as of immediately prior to the
Effective Time shall, notwithstanding the fact that such amounts will not be paid in cash to the Company, be taken into account for purposes
of determining the Closing Common Per Share Merger Consideration, the Closing Option Per Share Merger Consideration and the Closing Warrant
Per Share Merger Consideration payable to the holders of Company Capital Stock, In-The-Money Options and In-The-Money Warrants, as applicable,
as part of the Merger Consideration pursuant to this Agreement and allocating such Merger Consideration among all such holders of Company
Capital Stock, In-The-Money Options and In-The- Money Warrants in accordance with the terms hereof.


 


Section
2.03     Withholding. Each of Parent, the Final Surviving Entity,
the Escrow Agent, the Paying Agent and any other withholding agent shall be entitled to withhold from any cash consideration payable
pursuant to, or as contemplated under, this Agreement or the Escrow Agreement such amounts as Parent, the Final Surviving Entity, the
Escrow Agent, the Paying Agent and any other withholding agent are required to withhold from such consideration under the Code or any
provision of other applicable Tax Legal Requirements; provided that Parent shall use commercially reasonably efforts to provide the Company
with at least three (3) days prior written notice of any amounts that it intends to withhold in connection with the payment of the Merger
Consideration (other than (a) any compensatory payments to be made pursuant to this Agreement, and (b) any backup withholding obligations
or (c) any withholding Tax obligations arising from any failure to satisfy the obligation set forth in Section 6.04(c)) and shall
use commercially reasonable efforts to cooperate with the Company to reduce or eliminate any applicable withholding. To the extent that
amounts are so withheld and properly paid over to the applicable Governmental Authority, such withheld and paid-over amounts shall be
treated for all purposes of this Agreement as having been delivered and paid to the Person in respect of which such deduction and withholding
was made.


 


Section
2.04    Dissenting Shares. Notwithstanding anything to the contrary
contained in this Agreement, but only to the extent required by the DGCL, shares of Company Capital Stock held by a holder who did not
vote in favor of the Merger or consent thereto in writing or execute an enforceable waiver of appraisal rights to the extent permitted
by applicable Legal Requirement and who is entitled to demand and has made a proper demand for appraisal of such shares of Company Capital
Stock in accordance with Section 262 of the DGCL (such shares of Company Capital Stock being referred to collectively as the “Dissenting
Shares”) shall not be converted into the right to receive the applicable Merger Consideration in accordance with Section
2.02, but shall be entitled only to such rights as are granted by the DGCL to a holder of Dissenting Shares. At the Effective Time,
all Dissenting Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of
Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such Dissenting
Shares in accordance with Section 262 of the DGCL. Notwithstanding the foregoing, if any Dissenting Shares shall lose their status as
such (through failure to perfect, withdrawal or otherwise) or if a court of competent jurisdiction shall determine that such holder is
not entitled to the relief provided by Section 262 of the DGCL, then, as of the later of the Effective Time or the date of loss of such


 




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status,
such shares shall automatically be converted into and shall represent only the right to receive the applicable Merger Consideration and
Additional Merger Consideration, without interest thereon, promptly following the surrender of the certificate or certificates representing
such shares of Company Capital Stock. The Company shall give Parent prompt notice of any written demand received by the Company, any
withdrawal of any such demand and any other demand, notice or instrument delivered to the Company prior to the Effective Time that relate
to any such demand for payment. The Company shall not make any payment or settlement offer prior to the Effective Time with respect to
any such demand without the prior written consent of Parent and shall give Parent the opportunity to participate in all negotiations
and proceedings that take place prior to the Effective Time with respect to demands for payment under the DGCL.


 


Section
2.05     Payment of Closing Merger Consideration; Deposit of Adjustment Escrow
Amount; Deposit of Securityholder Representative Reserve.


 


(a)       On
the Closing Date, Parent shall, in accordance with the Consideration Spreadsheet pay or deliver, or cause to be paid or delivered to
the Paying Agent, (A) cash sufficient to pay the aggregate portion of the Estimated Closing Cash Consideration payable to the Effective
Time Holders (other than with respect to the Employee Holders and Bonus Holders) by wire transfer thereof to an account specified by
the Paying Agent, and (B) certificates representing the shares of Parent Class A Common Stock to be issued as Stock Consideration (other
than with respect to the Employee Holders and Bonus Holders) to the Accredited Effective Time Holders (or make appropriate alternative
arrangements if uncertificated shares of Parent Class A Common Stock represented by book-entry shares will be issued). It shall be the
responsibility of the Paying Agent to distribute:


 


(i)       the
Closing Common Per Share Merger Consideration payable pursuant to Section 2.02(d)(i) among the holders of Series B Preferred Stock,
in accordance with the Consideration Spreadsheet and the provisions of this Section 2.05(a), Section 2.05(c) and Section
2.06 (in each case, other than Excluded Shares);


 


(ii)       the
Closing Common Per Share Merger Consideration payable pursuant to Section 2.02(d)(ii) among the holders of Series A-1 Preferred
Stock, in accordance with the Consideration Spreadsheet and the provisions of this Section 2.05(a), Section 2.05(c) and
Section 2.06 (in each case, other than Excluded Shares);


 


(iii)       the
Closing Common Per Share Merger Consideration payable pursuant to Section 2.02(d)(iii) among the holders of Series A-2 Preferred
Stock, in accordance with the Consideration Spreadsheet and the provisions of this Section 2.05(a), Section 2.05(c) and
Section 2.06 (in each case, other than Excluded Shares);


 


(iv)       the
Closing Common Per Share Merger Consideration payable pursuant to Section 2.02(d)(iv) among the holders of Series Seed-1 Preferred
Stock, in accordance with the Consideration Spreadsheet and the provisions of this Section 2.05(a), Section 2.05(c) and
Section 2.06 (in each case, other than Excluded Shares);


 




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(v)       the
Closing Common Per Share Merger Consideration payable pursuant to Section 2.02(d)(v) among the holders of Series Seed-2 Preferred
Stock, in accordance with the Consideration Spreadsheet and the provisions of this Section 2.05(a), Section 2.05(c) and
Section 2.06 (in each case, other than Excluded Shares);


 


(vi)       the
Closing Common Per Share Merger Consideration payable pursuant to Section 2.02(d)(vi) among the holders of Company Common Stock,
in accordance with the Consideration Spreadsheet and the provisions of this Section 2.05(a), Section 2.05(c) and Section
2.06 (in each case, other than (i) shares to be canceled and retired in accordance with Section 2.02(d)(vi) and Section
2.02(d)(vii) and (ii) Dissenting Shares);


 


(vii)       the
Closing Option Per Share Merger Consideration payable pursuant to Section 2.02(h) among the Cancellation Holders, in accordance
with the Consideration Spreadsheet and the provisions of this Section 2.05(a), Section 2.05(c) and Section 2.06;
and


 


(viii)       the
Closing Warrant Per Share Merger Consideration payable pursuant to Section 2.02(i) among the holders of In-The-Money Warrants,
in accordance with the Consideration Spreadsheet and the provisions of this Section 2.05(a), Section 2.05(c) and Section
2.06.


 


(b)       On
the Closing Date, Parent shall, in accordance with the Consideration Spreadsheet pay or deliver, or cause to be paid or delivered to
the Company, (A) cash sufficient to pay the aggregate portion of the Estimated Closing Cash Consideration payable to the Effective Time
Holders (other than with respect to Effective Time Holders who will be paid pursuant to Section 2.05(a)) by wire transfer thereof
to an account specified by the Company, and (B) certificates representing the shares of Parent Class A Common Stock to be issued as Stock
Consideration (other than with respect to Effective Time Holders who will be paid pursuant to Section 2.05(a)) to the Accredited
Effective Time Holders (or make appropriate alternative arrangements if uncertificated shares of Parent Class A Common Stock represented
by book-entry shares will be issued). It shall be the responsibility of the Company to distribute the Closing Option Per Share Merger
Consideration payable pursuant to Section 2.02(h) among the Cancellation Holders, in accordance with the Consideration Spreadsheet
and the provisions of this Section 2.05(b), Section 2.05(c) and Section 2.06.


 


(c)       In
accordance with the terms of Section 2.05(a), Section 2.05(b) and this Section 2.05(c). Paying Agent shall:


 


(i)       pay
to each Unaccredited Effective Time Holder the aggregate amount payable to such holder under Section 2.05(a)(i) through Section
2.05(a)(viii) and Section 2.05(b), which amount shall be payable to such Unaccredited Effective Time Holder one hundred percent
(100%) in cash; and


 


(ii)       pay
to each Accredited Effective Time Holder the aggregate amount payable to such holder under Section 2.05(a)(i) through Section
2.05(a)(viii) and Section 2.05(b), which amount shall be paid in (x) the number of shares of Parent Class A Common Stock equal
to (1) such holder’s Stock Consideration Pro Rata Portion, multiplied by (2) the Stock Consideration


 




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and
(y) cash equal to (1) the aggregate amount payable to such holder under Section 2.05(a)(i) through Section 2.05(a)(viii)
and Section 2.05(b), minus (2) an amount equal to (A) the number of shares of Parent Class A Common Stock payable
to holder under clause (x) of this sentence, multiplied by (B) the Applicable Share Price.


 


(d)       On
the Closing Date, Parent shall deposit, or cause to be deposited, as a portion of the Merger Consideration, (A) via wire transfer of
immediately available funds to the Escrow Agent, the Bonus Escrow Amount for deposit into a separate escrow account as a contribution
to the Bonus Escrow Fund, pursuant to the terms of the Escrow Agreement and (B) certificates representing the shares of Parent Class
A Common Stock to be issued as Stock Consideration with respect to Bonus Awards pursuant to Section 2.02(k) for deposit into the
Bonus Escrow Fund. The Bonus Escrow Fund shall be distributed pursuant to Section 2.10 in accordance with the terms set forth
in this Agreement and the Escrow Agreement.


 


(e)       On
the Closing Date, Parent shall deposit, or cause to be deposited, as a portion of the Merger Consideration, via wire transfer of immediately
available funds to the Escrow Agent, (i) the Retention Escrow Amount to the Escrow Agent for deposit into a separate escrow account and
as a contribution to the Retention Escrow Fund and (ii) the Adjustment Escrow Amount for deposit into a separate escrow account as a
contribution to the Adjustment Escrow Fund, in each case, pursuant to the terms of the Escrow Agreement. The Adjustment Escrow Fund shall
be maintained for the purpose of satisfying any post-Closing adjustment pursuant to Section 2.08 and the Retention Escrow Fund
shall be maintained for the purposes of satisfying claims brought pursuant to Article X, in each case, in accordance with the
terms set forth in this Agreement and the Escrow Agreement.


 


(f)       On
the Closing Date, Parent shall deposit, or cause to be deposited, the Securityholder Representative Reserve with the Securityholder Representative
by wire transfer to an account specified by the Securityholder Representative. The Securityholder Representative Reserve shall be held
by the Securityholder Representative in a segregated client account and shall be used for the purposes of paying directly or reimbursing
the Securityholder Representative for any Representative Losses incurred pursuant to this Agreement, the Escrow Agreement and any other
agreement ancillary hereto or thereto. For all Tax purposes, the Securityholder Representative Reserve shall be treated as having been
received and voluntarily set aside by the Effective Time Holders at the time of Closing, after any withholding required by applicable
Legal Requirements.


 


(g)       The
Company shall bear one hundred percent (100%) of the fees of the Paying Agent.


 


Section
2.06     Surrender of Certificates.


 


(a)       Company
Stock Certificates. As soon as practicable following the date of this Agreement, Parent will cause the Paying Agent to send to the
holders of Company Capital Stock: (i) a Letter of Transmittal and a Subscription
Agreement, (ii) instructions for use in effecting the surrender of certificates in electronic form
representing shares of Company Capital Stock


 




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(each,
a “Company Stock Certificate”) and (iii) an Accredited Investor Questionnaire, in exchange for payment of the portion
of the Merger Consideration and Additional Merger Consideration that such holder has the right to receive pursuant to Section 2.02(d).
Upon surrender of each Company Stock Certificate held by such holder in electronic form to the Company or the Paying Agent for exchange
at least one (1) Business Day prior to the Closing Date, together with a validly and duly executed Letter of Transmittal and Subscription
Agreement, and any other customary documents that the Paying Agent may reasonably require in connection therewith, Parent shall, on the
Closing Date, cause the Paying Agent to pay to the holder of such Company Stock Certificate the portion of the Closing Merger Consideration
that such holder has the right to receive pursuant to Section 2.02(d) in accordance with Section 2.05(a), Section 2.05(b)
and Section 2.05(c). With respect to each Company Stock Certificate not surrendered by a holder, together with a validly and
duly executed Letter of Transmittal and Subscription Agreement, prior to the Closing Date, the Paying Agent shall hold any portion of
the Closing Merger Consideration and Additional Merger Consideration payable hereunder to such holder until such time as such holder
surrenders such Company Stock Certificate and a validly and duly executed Letter of Transmittal to the Paying Agent. After the Closing,
each such holder that surrenders and exchanges such holder’s Company Stock Certificates and delivers a validly and duly executed
Letter of Transmittal and Subscription Agreement to the Paying Agent shall be paid his, her or its portion of the Closing Merger Consideration
that such holder has the right to receive pursuant to Section 2.02(d) in accordance with Section 2.05(a). Until surrendered
as contemplated by this Section 2.06, each share represented by a Company Stock Certificate shall be deemed, from and after the
Effective Time, to represent only the right to receive the portion of the Closing Merger Consideration and the Additional Merger Consideration,
due hereunder in respect of such share.


 


(b)       In-The-Money
Options and In-The-Money Warrants. As soon as practicable following the date of this Agreement, Parent will, or will cause the Paying
Agent to, sent to the holders of In-The-Money Options and In-The-Money Warrants set forth on Schedule 2.06(b) (the “Cancellation
Holders”): (i) an Option Cancellation Agreement or Warrant Cancellation Agreement; (ii) instructions for use in executing and
delivering the same in electronic form, in exchange for payment of the portion of the Merger Consideration and Additional Merger Consideration
that such holder has the right to receive pursuant to Section 2.02(g) or Section 2.02(i), as applicable and (iii) an Accredited
Investor Questionnaire. Upon delivery by such Cancellation Holders of a duly and validly executed
(A) Option Cancellation Agreement or Warrant Cancellation Agreement, as applicable, and (B) Accredited Investor Questionnaire
in electronic form to the Company or the Paying Agent at least three (3) Business Days prior to
the Closing Date, together with any other customary documents that the Paying Agent may reasonably require in connection therewith, Parent
shall cause to the Paying Agent to pay to the Cancellation Holders, the portion of the Closing Merger Consideration that such Cancellation
Holder has the right to receive pursuant to Section 2.02(g) or Section 2.02(i), as applicable, in accordance with Section
2.05(a), Section 2.05(b) and Section 2.05(c). Until a validly and duly
executed Option Cancellation Agreement and Accredited Investor Questionnaire is delivered
by a Cancellation Holder with respect to an In-The-Money Option as contemplated by this Section 2.06, such In-The-Money Option
shall be deemed, from and after the Effective Time, to represent only the right to receive the portion of the Closing Merger Consideration
and the Additional Merger Consideration, due hereunder in respect of such In-The-Money Option.


 




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(c)       As
soon as practicable following the date of this Agreement, Parent or the Company will, or will cause the Paying Agent to, sent to the
holders of In-The-Money Options (other than the Cancellation Holders) and Employee RSUs set forth on Schedule 2.02(j) (the “Employee
Holders”) (i) a Subscription Agreement and (ii) an Accredited Investor Questionnaire.
Upon delivery by such Employee Holders of a duly and validly executed (A) Subscription Agreement and (B) Accredited Investor Questionnaire
in electronic form to the Company or the Paying Agent at least three (3) Business Days prior to
the Closing Date, together with any other customary documents that the Paying Agent may reasonably require in connection therewith, the
Company shall pay, subject to and reduced by any applicable withholding Taxes, through the Company’s regular payroll procedures
or, if it is determined that payment through payroll is not advisable due to tax, legal or administrative reasons, through methods as
determined by the parties, to the Employee Holders, the portion of the Closing Merger Consideration that such Employee Holder has the
right to receive pursuant to Section 2.02(g) or Section 2.02(i), as applicable, in accordance with Section 2.05(a),
Section 2.05(b) and Section 2.05(c). Until a validly and duly executed Subscription
Agreement and Accredited Investor Questionnaire is delivered by an Employee Holder with
respect to an In-The-Money Option or Employee RSU as contemplated by this Section 2.06, such In-The-Money Option or Employee RSU
shall be deemed, from and after the Effective Time, to represent only the right to receive the portion of the Closing Merger Consideration
and the Additional Merger Consideration, due hereunder in respect of such In-The-Money Option or Employee RSU.


 


(d)       Right
to Receive Additional Merger Consideration. Upon surrender and exchange of Company Stock Certificates and delivery of the Letter
of Transmittal and Accredited Investor Questionnaire, each holder of Company Capital Stock shall be irrevocably entitled to receive the
portion of the Additional Merger Consideration to which such holder is entitled, to be paid to such holder as set forth in this Agreement
and in accordance with the applicable provisions of the Escrow Agreement. Notwithstanding anything contained in this Article II
to the contrary, the provisions of this Section 2.06(d) shall not be applicable to Dissenting Shares. Upon deliver of (A) with
respect to Cancellation Holders, a duly executed Option Cancellation Agreement or Warrant Cancellation Agreement, as applicable, and
Accredited Investor Questionnaire, or (B) with respect to Employee Holders, a duly executed Subscription Agreement and Accredited Investor
Questionnaire, each holder of In-The-Money Options or In-The-Money Warrants, as applicable, shall be irrevocably entitled to receive
the portion of the Additional Merger Consideration to which such holder is entitled, to be paid to such holder as set forth in this Agreement
and in accordance with the applicable provisions of the Escrow Agreement.


 


(e)       Transfer
Books; No Further Ownership Rights in Company Stock. At the Effective Time all shares of Company Capital Stock outstanding immediately
prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and all holders of Company Stock Certificates
representing shares of Company Capital Stock that were outstanding immediately prior to the Effective Time shall cease to have any rights
as stockholders of the Company, except the right to receive the applicable Merger Consideration and Additional Merger Consideration with
respect to each share of Company Capital Stock evidenced by such Company Stock Certificate upon surrender thereof in accordance with
Section 2.06(a).


 




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(f)       Lost,
Stolen or Destroyed Certificates. If any Company Stock Certificate shall have been lost, stolen or destroyed, Paying Agent and Parent
may, in their discretion and as a condition precedent to the payment of any portion of any Merger Consideration or Additional Merger
Consideration with respect to the shares of Company Capital Stock previously represented by such Company Stock Certificate, require the
owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit of loss with respect to such Company
Stock Certificate and require such owner to indemnify the Paying Agent and Parent, against any claim that may be made against the Paying
Agent or Parent with respect to the Company Stock Certificate alleged to have been lost, stolen or destroyed (but, for the avoidance
of doubt, shall not require the posting of a bond).


 


(g)       Unclaimed
Funds. Any portion of the Merger Consideration deposited with the Paying Agent that remains unclaimed by Effective Time Holders one
(1) year after the Effective Time shall be returned to Parent, upon demand, and any such Effective Time Holder who has not exchanged
such Company Capital Stock, or delivered an Option Cancellation Agreement or Warrant Cancellation Agreement, as applicable, in consideration
of, for the Merger Consideration in accordance with this Section 2.06 prior to that time shall thereafter look only to Parent
and the Final Surviving Entity for payment of the Merger Consideration without any interest thereon. Notwithstanding the foregoing, none
of Parent, the Company, the Merger Sub, the Sister Subsidiary, the Final Surviving Entity, the Paying Agent or any other Person shall
be liable to any Effective Time Holders for any cash or stock delivered to a public official pursuant to any abandoned property, escheat
or similar Legal Requirements. Any amounts remaining unclaimed by the Effective Time Holders two
(2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts
would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by applicable Legal
Requirements, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.


 


Section
2.07Consideration Spreadsheet and Estimated Closing Balance Sheet.


 


(a)       The
Company shall prepare and deliver to Parent, on a preliminary basis at the time of the execution of this Agreement and on an updated
basis no later than five (5) Business Day prior to the Closing, a spreadsheet (the “Consideration Spreadsheet”), which
spreadsheet shall be dated as of the Closing Date and shall set forth the calculation of the Closing Merger Consideration and the portions
thereof to be paid to the Effective Time Holders, with appropriate reasonable evidence of amounts used therein, as of the Closing Date
immediately prior to the Effective Time, including the following information: (a) the names of all of the Effective Time Holders and
their respective addresses and email addresses of record; (b) with respect to each Effective Time Holder, the number and class of shares
of Company Capital Stock held by such Effective Time Holder immediately prior to the Effective Time and the respective certificate numbers,
if any, evidencing such shares, the number of shares of Company Capital Stock subject to Employee Options held by such Effective Time
Holder immediately prior to the Effective Time, the number of shares of Company Capital Stock subject to In-The-Money Warrants held by
such Effective Time Holder immediately prior to the Effective Time, whether such Effective Time Holder is an Accredited Investor, such
holder’s Pro Rata Portion of the Closing Cash Consideration


 




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and
Stock Consideration (if such holder is an Accredited Effective Time Holder), the aggregate amount of Closing Merger Consideration payable
to such Effective Time Holder under Section 2.05(a) and Section 2.05(b), and the aggregate amount of the Estimated Closing
Cash Consideration and Stock Consideration (including the number of Accredited Effective Time Holder Shares, if any) as determined in
accordance with Section 2.05(c); (c) the exercise price per share of each Company Option held by an Effective Time Holder; (d)
the exercise price per share of each In-The-Money Warrant held by an Effective Time Holder; (e) the Closing Common Per Share Merger Consideration;
(f) Closing Option Per Share Merger Consideration, (g) the Closing Warrant Per Share Merger Consideration, (h) whether (but not the amount
of) Tax withholding on compensatory payments is required in connection with the payment of the Closing Merger Consideration; (i) the
Aggregate Option Exercise Amount; (j) the Aggregate Warrant Exercise Amount; (k) the Pro Rata Portion of each Effective Time Holder;
(l) the amount to be remitted to the Escrow Agent for the Adjustment Escrow Amount, the Retention Escrow Amount, the Bonus Escrow Amount
and the amount of the Securityholder Representative Reserve to be remitted to the Securityholder Representative; and (m) the name, amount
and wiring instructions with respect to any applicable recipients including the Employee Holders but other than any other Effective Time
Holders named in the Consideration Spreadsheet. The Company shall, and shall cause its Representatives to, provide Parent and its Representatives
a reasonable opportunity to review and discuss the Consideration Spreadsheet, including, upon reasonable advance notice, reasonable access
during normal business hours to relevant personnel and records of the Company to the extent necessary to review the matters and information
used to prepare the Consideration Spreadsheet, all in a manner not to unreasonably interfere with the business of the Company in any
material respect. In the event Parent shall object to the Estimated Closing Cash Consideration or any item included therein, Parent shall
notify the Company of such objection, and the Company and Parent shall cooperate in good faith to attempt to resolve Parent’s objection
as soon as practicable prior to the Closing Date.


 


Section
2.08     Purchase Price Adjustment.


 


(a)       Estimated
Closing Balance Sheet and Estimated Closing Statement. The Company shall prepare in good faith and shall provide to Parent no later
than five (5) Business Days prior to the Closing Date an estimated consolidated balance sheet of the Company as of the close of business
on the day immediately preceding the Closing Date (as the same may be adjusted in response to any comments of Parent and its Representatives
provided prior to the Closing, the “Estimated Closing Balance Sheet”), together with a written statement setting forth
in reasonable detail its good faith estimates of the Closing Cash (“Estimated Closing Cash”), Closing Indebtedness
(“Estimated Closing Indebtedness”), Company Transaction Expenses (“Estimated Company Transaction Expenses”)
and Closing Net Working Capital (“Estimated Closing Net Working Capital”), including its good faith estimates of any
Net Working Capital Excess (“Estimated Net Working Capital Excess”) or Net Working Capital Shortfall (“Estimated
Net Working Capital Shortfall”), each as derived from the Estimated Closing Balance Sheet (as the same may be adjusted in response
to any comments of Parent and its Representatives provided prior to the Closing, the “Estimated Closing Statement”).
The Estimated Closing Balance Sheet and the Estimated Closing Net Working Capital contained in the Estimated Closing Statement will be
prepared in accordance with the Accounting Principles and without giving effect to any changes


 




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resulting
from the consummation of the Contemplated Transactions on the Closing Date. Following the delivery of the Estimated Closing Balance Sheet
and the Estimated Closing Statement, the Company shall provide Parent and its Representatives reasonable access to the work papers and
other books and records of the Company for purposes of assisting Parent and its Representatives in their review of the Estimated Closing
Balance Sheet and the Estimated Closing Statement. Prior to Closing, the parties shall cooperate in good faith to answer any questions
and resolve any issues raised by Parent and its Representatives in connection with their review of the Estimated Closing Balance Sheet
and the Estimated Closing Statement.


 


(b)       Proposed
Final Closing Balance Sheet and Post-Closing Statement. As promptly as possible and in any event within ninety (90) days after the
Closing Date, Parent shall prepare or cause to be prepared, and shall deliver to the Securityholder Representative a consolidated balance
sheet of the Company as of the close of business on the day immediately preceding the Closing Date (the “Proposed Final Closing
Balance Sheet”), together with a written statement (the “Post-Closing Statement”) setting forth Parent’s
good faith estimate (including all calculations in reasonable detail) of (i) the Closing Cash, Company Transaction Expenses, Closing
Indebtedness, and Closing Net Working Capital, including any Net Working Capital Excess or Net Working Capital Shortfall, and (ii) a
statement setting forth the determination of the resulting estimated Closing Cash Consideration. The Proposed Final Closing Balance Sheet
and Post-Closing Statement will be prepared in accordance with the Accounting Principles and without giving effect to any changes resulting
from the consummation of the Contemplated Transactions on the Closing Date.


 


(c)       Notice
of Disagreement. During the thirty (30) day period following delivery of the Post-Closing Statement to the Securityholder Representative
(the “Notice Period”), Parent shall, and shall cause its Representatives to, use commercially reasonable efforts to
cooperate with the Securityholder Representative and its Representatives to provide them with information used in preparing the Proposed
Final Closing Balance Sheet and the Post-Closing Statement reasonably requested by the Securityholder Representative and its Representatives
including, upon reasonable advance notice, reasonable access during normal business hours to relevant personnel and records of Parent
and the Final Surviving Entity to the extent necessary to review the matters and information used to prepare the Proposed Final Closing
Balance Sheet and the Post-Closing Statement, all in a manner not to unreasonably interfere with the business of Parent and the Final
Surviving Entity in any material respect. The Proposed Final Closing Balance Sheet, the Post-Closing Statement, the Adjustable Amounts
and the resulting Closing Cash Consideration shall become final and binding at the end of the Notice Period, unless prior to the end
of such period, the Securityholder Representative delivers to Parent written notice of its disagreement (a “Notice of Disagreement”).
The Notice of Disagreement shall describe in reasonable detail the nature of any disagreements the Securityholder Representative may
have with the calculations set forth in the Proposed Final Closing Balance Sheet and the Post-Closing Statement and shall identify the
specific items as to which the Securityholder Representative disagrees. The Securityholder Representative shall be deemed to have agreed
with all items and amounts in the Proposed Final Closing Balance Sheet and the Post-Closing Statement not specifically referenced in
the Notice of Disagreement, and such items and amounts shall not be subject to review under this Section 2.08.


 




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(d)       Resolution
of Disputes.


 


(i)       During
the ten (10) Business Day period following delivery of a Notice of Disagreement by the Securityholder Representative to Parent, the parties
shall seek in good faith to resolve any differences that they may have with respect to the matters specified therein. Any disputed items
resolved in writing between the Securityholder Representative and Parent within such ten (10) Business Day period shall be final and
binding with respect to such items, and if the Securityholder Representative and Parent agree in writing on the resolution of each disputed
item specified in the Notice of Disagreement, the amount so determined shall be final and binding on the parties for all purposes hereunder.


 


(ii)       If
the Securityholder Representative and Parent have not resolved all such differences by the end of such ten (10) Business Day period
(or such later period if extended in a writing signed by the Securityholder Representative and Parent), either the Securityholder Representative
or Parent may provide written notice to the other (the “Dispute Submission Notice”) that it elects to submit
the disputed items to KPMG LLP or another nationally recognized independent accounting firm chosen jointly by the
Securityholder Representative and Parent (the “Accounting Firm”). In the event that KPMG LLP has not agreed
to act as the Accounting Firm and an alternative Accounting Firm has not been selected by mutual agreement of the
Securityholder Representative and Parent within ten (10) Business Days following the giving of the Dispute Submission Notice,
each of the Securityholder Representative and Parent shall promptly select an accounting
firm and promptly cause such two accounting firms to mutually select a third independent accounting firm to act as the Accounting Firm
within twenty (20) Business Days of the giving of the Dispute Submission Notice.


 


(iii)       The
Accounting Firm will promptly, in accordance with the rules set forth in the Accounting Firm’s engagement letter and its customary
practices, review only those unresolved items and amounts specifically set forth and objected to in the Notice of Disagreement and resolve
the dispute with respect to each such specific unresolved item and amount in accordance with this Agreement. The
Accounting Firm, acting as an arbitrator (and not as an expert), shall be authorized to resolve only those items remaining in dispute
between the parties in accordance with the provisions of this Section 2.08 (and no other matter) and the scope of the disagreements
to be resolved by the Accounting Firm shall be limited to fixing mathematical errors and determining whether the items that are the subject
of the disagreements were determined in accordance with the terms and provisions of this Agreement, which resolution of such disputed
item shall be an amount within the range of the value of such disputed item as proposed by Parent in the Post-Closing Statement, as
applicable, or as proposed by the Securityholder Representative in the Notice of Disagreement. The determination of the Accounting Firm
shall be accompanied by a certificate of the Accounting Firm that it reached such determination in accordance with the provisions of
this Section 2.08. The Securityholder Representative and Parent shall use their commercially reasonable efforts to cause the Accounting
Firm to render a written decision resolving the matters submitted to it within thirty (30) days following the submission thereof and
such written decision shall be based solely on the terms and provisions of this Agreement, the Proposed Final Closing Balance Sheet,
the Post-Closing Statement, the Notice of Disagreement and the briefs submitted by Parent and the Securityholder Representative, which
briefs shall be


 




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consistent
with the Post-Closing Statement (in the case of Parent) and the Notice of Disagreement (in the case of the Securityholder Representative)
and shall be concurrently provided to the other party. Judgment may be entered upon the written determination of the Accounting Firm
in any court of competent jurisdiction. Notwithstanding anything to the contrary in this Agreement, the costs of any dispute resolution
pursuant to this subsection, including the fees and expenses of the Accounting Firm and of any enforcement of the determination thereof,
shall be borne by Parent and the Securityholder Representative (on behalf of the Effective Time Holders) in inverse proportion as they
may prevail on the matters resolved by the Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis
based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Firm at the time the determination
of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each party incurred
in connection with their preparation or review of the Post-Closing Statement and preparation or review of any Notice of Disagreement,
as applicable, shall be borne by such party. The Proposed Final Closing Balance Sheet, the Post-Closing Statement, the Adjustable Amounts
and the resulting Closing Cash Consideration shall become final and binding on the parties hereto on the date the Accounting Firm delivers
its final resolution in writing to Parent and the Securityholder Representative and, absent manifest error, such resolution by the Accounting
Firm shall not be subject to court review or otherwise appealable.


 


(e)       For
purposes of this Agreement, “Final Closing Cash Consideration” means the Closing Cash Consideration, as finally determined
in accordance with this Section 2.08. The parties agree that:


 


(i)       If
the Final Closing Cash Consideration is less than the Estimated Closing Cash Consideration set forth in the Consideration Spreadsheet
(such that it would have resulted in the payment of a different amount of Closing Cash Consideration), then Parent shall recover the
amount of such difference (“Payment Excess”) from the Adjustment Escrow Fund. The Adjustment Escrow Fund shall be
Parent’s sole and exclusive recourse for any difference between the Final Closing Cash Consideration and the Estimated Closing
Cash Consideration and the Effective Time Holders shall have no liability for such difference in excess of the Adjustment Escrow Fund.
Within five (5) Business Days of the final determination of the Final Closing Cash Consideration, Parent and the Securityholder Representative
shall deliver a joint written instruction to the Escrow Agent to release to Parent an amount of cash equal to the Payment Excess, if
any, from the Adjustment Escrow Amount in accordance with the Escrow Agreement.


 


(ii)       If
the Final Closing Cash Consideration is greater than the Estimated Closing Cash Consideration set forth in the Consideration Spreadsheet
(such that it would have resulted in the payment of a different amount of Closing Cash Consideration), then, within five (5) Business
Days following the final determination of the Final Closing Cash Consideration, Parent shall (through the Paying Agent) pay the amount
of such difference (“Payment Shortfall”) to the Effective Time Holders entitled to receive such Payment Shortfall
in accordance with their Pro Rata Portions as a portion of the Additional Merger Consideration.


 




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(iii)       If
the Final Closing Cash Consideration is (x) equal to the Estimated Closing Cash Consideration set forth in the Consideration Spreadsheet
or (y) less than or greater than the Estimated Closing Cash Consideration set forth in the Consideration Spreadsheet and such difference
would not have resulted in the payment of a different amount of Closing Cash Consideration, then there shall be no adjustments or further
obligations under this Section 2.08.


 


(iv)       Upon
final determination of the Final Closing Cash Consideration and payment of the corresponding Payment Excess to Parent, if any, Parent
and the Securityholder Representative shall deliver a joint written instruction to the Escrow Agent to release the amount, if any, then
remaining in the Adjustment Escrow Fund to the Paying Agent, for further distribution to the Effective Time Holders in accordance with
their Pro Rata Portions as a portion of the Additional Merger Consideration.


 


(f)       Parent
agrees that following the Closing it will not, and it will cause the Final Surviving Entity not to, take any actions with respect to
the accounting books, records, policies and procedures of the Company or the Final Surviving Entity that would obstruct or prevent the
preparation of the Post-Closing Statement as provided in this Section 2.08. Parent will cooperate in the review of the Post-Closing
Statement.


 


Section
2.09      Earn-Out.


 


(a)       Proposed
Company Revenue Statement. Not later than March 1, 2023, Parent shall prepare and deliver to the Securityholder Representative a
statement setting forth the Company Revenue for the Earn-Out Period (the “Proposed Company Revenue Statement”), which
calculation will be prepared in accordance with the Company Revenue definition set forth herein. Following delivery of the Proposed Company
Revenue Statement and until determination of the final Company Revenue amount in accordance with this Section 2.09, Parent shall
provide Securityholder Representative and its Representatives reasonable access to the work papers and other books and records of the
Company for purposes of assisting Securityholder Representative and its Representatives in their review of the Proposed Company Revenue
Statement. Parent and Securityholder Representative shall cooperate in good faith to answer any questions and resolve any issues raised
by the Securityholder Representative and its Representatives in connection with their review of the Proposed Company Revenue Statement.


 


(b)       Company
Revenue Dispute Notice. The Proposed Company Revenue Statement will be final, conclusive and binding on the parties unless the Securityholder
Representative provides a written notice (a “Company Revenue Dispute Notice”) to Parent no later than the thirtieth
(30th) day after the delivery to the Securityholder Representative of the Proposed Company Revenue Statement. Any such Company Revenue
Dispute Notice shall specify those items or amounts as to which the Securityholder Representative disagrees, and the Securityholder Representative
shall be deemed to have agreed with all other items and amounts contained in the Proposed Company Revenue Statement and Parent’s
calculation of Company Revenue as set forth thereon, except to the extent that the calculation of other items are derived from the items
or amounts specified as in dispute in the Company Revenue Dispute Notice.


 




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(c)       Resolution
of Disputes.


 


(i)       Parent
and Securityholder Representative will attempt to promptly resolve the matters raised in any Company Revenue Dispute Notice in good faith.
If the parties have not resolved the matters raised in any Company Revenue Dispute Notice within ten (10) Business Days after the date
of delivery of any Company Revenue Dispute Notice pursuant to Section 2.09(b) either the Parent or Securityholder Representative
may provide written notice to the other (the “Company Revenue Dispute Resolution Notice”) that it elects to submit
the disputed items to the Accounting Firm or another nationally recognized independent accounting firm chosen jointly by Parent and the
Securityholder Representative. In the event that KPMG LLP has not agreed to act as the Accounting Firm and an alternative accounting
firm has not been selected by mutual agreement of Parent and the Securityholder Representative within ten (10) Business Days following
the giving of the Company Revenue Dispute Resolution Notice, each of Parent and the Securityholder Representative shall promptly select
an accounting firm and promptly cause such two accounting firms to mutually select a third independent accounting firm to act as the
Accounting Firm within twenty (20) Business Days of the giving of the Company Revenue Dispute Resolution Notice.


 


(ii)       The
Accounting Firm will promptly, in accordance with the rules set forth in the Accounting Firm’s engagement letter and its customary
practices review only those unresolved items and amounts specifically set forth and objected to in the Company Revenue Dispute Resolution
Notice and resolve the dispute with respect to each such specific unresolved item and amount in accordance with this Agreement. The
Accounting Firm, acting as an arbitrator (and not as an expert), shall be authorized to resolve only those items remaining in dispute
between the parties in accordance with the provisions of this Section 2.09 (and no other matter) and the scope of the disagreements
to be resolved by the Accounting Firm shall be limited to fixing mathematical errors and determining whether the items that are the subject
of the disagreements were determined in accordance with the terms and provisions of this Agreement, which resolution of such disputed
item shall be an amount within the range of the value of such disputed item as proposed by Parent in the Proposed Company Revenue
Statement, as applicable, or as proposed by the Securityholder Representative in the Company
Revenue Dispute Notice. In any such case, the Accounting Firm shall render a written decision as to each disputed matter, including a
statement in reasonable detail of the basis for its decision. The fees and expenses of the Accounting Firm shall be borne equally by
Parent and the Securityholder Representative (on behalf of the Effective Time Holders).


 


(iii)       The
decision of the Accounting Firm with respect to the disputed items of the Proposed Company Revenue Statement submitted to it will be
final, conclusive and binding on the parties. As used herein, the Proposed Company Revenue Statement, as adjusted to reflect any changes
agreed to by the parties and the decision of the Accounting Firm, in each case, pursuant to Section 2.09(c), is referred to herein
as the “Final Company Revenue Statement.” The date of the determination of the Final Company Revenue Statement
shall be referred herein as the “Earn-Out Date.” Each of Parent and Securityholder Representative agree to use its
commercially reasonable efforts to cooperate with the Accounting Firm (including by executing a customary


 




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engagement
letter reasonably acceptable to it) and to cause the Accounting Firm to resolve any such dispute as soon as practicable after the commencement
of the Accounting Firm’s engagement.


 


(d)       Earn-Out
Calculation. The “Earn-Out Payment” shall be calculated as follows:


 


(i)       If
the Company Revenue for the Earn-Out Period exceeds [***], the Effective Time Holders shall be entitled to an Earn-Out Payment equal
to the amount calculated by multiplying 5.0 by each dollar of Company Revenue that exceeds [***] during the Earn-Out Period.


 


(ii)       Notwithstanding
the foregoing, in no event will the amount of the Earn-Out Payment payable by Parent under this Section 2.09 exceed [***].


 


(iii)       The
Earn-Out Payment shall be payable by Parent to the Effective Time Holders as follows: [***].


 


(iv)       For
illustration purposes, a grid that includes sample calculations of the Earn-Out Payment is set forth in Annex II.


 


(e)       Earn-Out
Payment.


 


(i)       Within
three (3) Business Days after the Earn-Out Date, the Securityholder Representative shall provide an annex to Parent and the Paying Agent
listing: (i) the name of each Effective Time Holder and each Effective Time Holder’s Pro Rata Portion, (ii) the amount of Parent
Class A Common Stock to be distributed to each such Effective Time Holder from the Earn-Out Payment, (iii) the mailing address for delivery
of stock certificates for the Parent Class A Common Stock to be distributed to each such Effective Time Holder from the Earn-Out Payment,
and (iv) information from such Effective Time Holder for the delivery of the Parent Class A Common Stock to be distributed to each such
Effective Time Holder by digital registration, if applicable, and such annex shall be approved by Parent, and such approval shall not
be unreasonably withheld, conditioned or delayed.


 


(ii)       Parent
shall coordinate delivery of digital registration documentation for such Parent Class A Common Stock to each Effective Time Holder within
five (5) Business Days after Parent’s approval of the annex delivered pursuant to Section 2.09(e)(i) above.


 


(iii)       No
interest shall accrue or be paid on any portion of the Earn-Out Payment.


 


(f)       Operation
of the Business.


 


(i)       Attached
as Exhibit N is the agreed upon business plan and budget (the “Business Plan”) for the operation of the Company
during the Earn-Out Period. The Business Plan identifies, among other things (w) the agreed upon budget for the operation of the Company


 




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during
the Earn-Out Period (the “Budget”), (x) certain key capital expenditures (including with respect to advertising and
customer outreach) to be incurred and made by Parent, and (y) the actions to be taken by Parent during the Earn-Out Period to support
the operations of the Company and to offer the Company’s products to existing customers of Parent.


 


(ii)       Without
limiting the foregoing, during the Earn-Out Period: [***].


 


(iii)       Parent
shall calculate the revenue of the Company during the Earn-Out Period in a manner that is consistent with Irish GAAP, as consistently
applied by the Company prior to the Closing; provided, that such calculation of the revenue of the Company during the Earn-Out Period
shall exclude any amounts adjusted as a result of any deferred revenue received by the Company Group. The calculation shall also not
include any deferred revenue adjustments from purchase accounting.


 


(iv)       If
any dispute arises during the Earn-Out Period with respect this Section 2.09(f), the employees of Parent and the Senior Employee
Team Member shall use their good faith reasonable efforts to resolve the dispute, and if a dispute remains unresolved after thirty (30)
days of good faith efforts to resolve it, it shall be elevated to the Chief Operating Officer of Parent and the Senior Employee Team
Member. If such dispute remains unresolved thirty (30) days after elevation to such persons, the dispute shall be submitted to a mediator
mutually agreed to by the Chief Operating Officer of Parent and the Senior Employee Team Member (who shall be appointed within ten (10)
days of a request by either the Chief Operating Officer of Parent or the Senior Employee Team Member) and Parent shall act in good faith
to promptly resolve such dispute so as to avoid any disruption to the Company and maximization of the Earn-Out Payment.


 


(g)       Assignment;
Change of Control.


 


(i)       After
the Closing, no Effective Time Holder may sell, exchange, transfer or otherwise dispose of his, her or its right to receive any portion
of the Earn-Out Payment that becomes due and payable in accordance with this Section 2.09, other than (i) upon death by will or
intestacy; (ii) by instrument to an inter vivos or testamentary trust in which the right to receive the Earn-Out Payment or portion
thereof is to be passed to beneficiaries upon the death of the trustee; (iii) made pursuant to a court order; (iv) made by operation
of law (including a consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination
of any corporation, limited liability company, partnership or other entity; or (v) to any Person, with Parent’s consent. Any transfer
in violation of this Section 2.09 shall be null and void and shall not be recognized by Parent or the Company.


 


(ii)       In
the event of a Change of Control of Parent, the Securityholder Representative shall have the option for thirty (30) days following such
Change of Control of Parent to elect that any portion of the Earn-Out Payment that would become due and payable pursuant to this Section
2.09 in the form of Parent Class A Common Stock shall be paid in cash to the Effective Time Holders.


 


(h)       Updates.
Within sixty (60) days of the end of each fiscal quarter during the Earn-Out Period, Parent shall deliver to the Securityholder Representative
a report containing a


 




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calculation
of the Company Revenue during the period beginning on January 1, 2022 and ending on the last day of the applicable fiscal quarter (each,
a “Progress Report”). Each Progress Report shall include a comparison of actual Company Revenue for the applicable
period compared to the Company Revenue provided for in the Business Plan for the applicable period and a good faith explanation of any
material variance.


 


Section
2.10     Payments with Respect to Bonus Awards.


 


(a)       Within
(10) Business Days of the twenty one (21) month anniversary of the Closing Date, Parent and the Securityholder Representative shall send
a notice to the Escrow Agent directing the Escrow Agent to (i) distribute a portion of the Bonus Escrow Fund pursuant to the terms of
Section 2.10(b) to the employees who hold Bonus Awards and have met all conditions to receive such Bonus Award (or with respect
to whom any such conditions have been waived by the Senior Employee Team Member) and (ii) distribute the balance of the Bonus
Escrow Fund to the Paying Agent for distribution to the Effective Time Holders as Additional Merger Consideration.


 


(b)       Each
employee identified on Schedule 2.02(k), in each case, who has remained an employee of any member of the Company Group or Parent
as of the twenty one (21) month anniversary of the Closing Date (or such shorter period determined by the Senior Employee Team Member),
shall receive from the Bonus Escrow Fund the Closing Common Per Share Merger Consideration and the Additional Per Share Merger Consideration,
if any, represented by the Bonus Award held by such employee, and an additional amount shall be distributed to Parent sufficient to satisfy
the employer portion of any applicable FICA, Medicare or similar payroll Taxes associated therewith. If an employee identified on Schedule
2.02(k), has not remained an employee of any member of the Company Group or Parent as of the twenty one (21) month anniversary of
the Closing Date, the Closing Common Per Share Merger Consideration and the Additional Per Share Merger Consideration, if any represented
by the Bonus Award held by such employee shall be distributed to the Effective Time Holders and shall be treated as Additional Merger
Consideration provided that the Fully Diluted Company Share Number shall be calculated excluding the Bonus Share Number underlying such
Bonus Award for purposes of distributing such Additional Per Share Merger Consideration.


 


Section
2.11     Tax Treatment. The parties hereto intend that, for United
States federal income tax purposes, the Mergers, will constitute an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B.
321 and shall constitute a tax-free “reorganization” within the meaning of Section 368(a) of the Code and for this Agreement
to be, and is hereby adopted as, a “plan of reorganization” for purposes of Section 354 and 361 of the Code and Treasury
Regulations Section 1.368-2(g) and 1.368-3(a), to which Parent, Merger Sub, Sister Subsidiary, and the Company are parties under Section
368(b) of the Code. Each of the parties hereto shall use their respective commercially reasonable efforts to cause the Mergers to qualify,
and shall not take any action nor cause any action to be taken, or knowingly fail to take any action, which action or failure to act
would reasonably be expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a)
of the Code. The parties hereto shall treat the Mergers as a tax-free “reorganization” under Section 368(a) of the Code and
no party shall take any position for tax purposes inconsistent therewith, except to the extent otherwise required pursuant to a


 




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“determination”
within the meaning of Section 1313(a) of the Code. Neither party is aware of any facts or circumstances that could reasonably be expected
to prevent the Mergers, taken together, from constituting an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that
qualifies as a “reorganization” within the meaning of Section 368(a) of the Code.


 


Section
2.12    Further Action. If, at any time after the Effective Time,
any further action is determined by Parent or the Final Surviving Entity to be reasonably necessary to vest the Final Surviving Entity
with full right, title and possession of and to all rights and property of Merger Sub and the Company, and such action is not expressly
prohibited herein, the officers and directors of the Final Surviving Entity and Parent shall be fully authorized (in the name of Merger
Sub, in the name of the Company and otherwise) to take such action.


 


Article
III

REPRESENTATIONS AND WARRANTIES REGARDING

THE COMPANY Group.


 


In
order to induce Parent to enter into and perform this Agreement and to consummate the Contemplated Transactions, the Company represents
and warrants to Parent that, except as disclosed by the Company in the Company Disclosure Schedule delivered on the date hereof and as
of the Closing Date, the following statements are true, complete and correct as of the date hereof, except that the accuracy of representations
and warranties that by their respective terms speak as of the specified date will be determined as of such date; provided that
any exception set forth in a section or subsection of the Company Disclosure Schedule shall be deemed to be disclosed solely for purposes
of, and shall solely qualify, such section or subsection of this Agreement and any other section or subsection of this Agreement where
it is reasonably apparent on the face of such exception that such exception would be applicable to such other section or subsection.


 


Section
3.01     Organization. Each member of the Company Group is duly
organized, validly existing and in good standing under the laws of its jurisdiction of formation. Each member of the Company Group is
duly qualified to do business and in good standing in each jurisdiction in which it leases real property or conducts business and is
required to so qualify, except where the failure to so qualify would not reasonably be expected to be material, which jurisdictions are
listed in Schedule 3.01. The Company has delivered to the Parent accurate and complete copies of the Organizational Documents
of each member of the Company Group. Schedule 3.01 of the Company Disclosure Schedule sets forth an accurate and complete list
of all Predecessors of each member of the Company Group.


 


Section
3.02     Power and Authorization; Board Approval; Requisite Vote.


 


(a)       Contemplated
Transactions. The Company has all requisite power and authority necessary for the execution, delivery and performance by it of this
Agreement and each such Ancillary Agreement. The Company has duly authorized by all necessary action on the part of the Company Board
and the holders of Company Capital Stock (or other holders of Equity Interests of the Company), the execution, delivery and performance
of this Agreement and each such Ancillary Agreement by the Company. This Agreement and each Ancillary Agreement (i)


 




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have
been (or, in the case of Ancillary Agreements to be entered into at Closing, will be when executed and delivered) duly executed and delivered
by the Company and (ii) is (or in the case of Ancillary Agreements to be entered into at the Closing, will be when executed and delivered)
a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.


 


(b)       Conduct
of Business. Each member of the Company Group has all requisite power and authority necessary to own, lease, operate and use its
Assets and carry on the Business.


 


(c)       Board
Approval; Requisite Vote. The Company Board at a meeting duly called and held at which all directors of the Company were present,
duly and unanimously adopted resolutions (A) approving and declaring advisable this Agreement and the other Ancillary Agreements, the
Merger, and the other transactions contemplated by this Agreement and approving the execution, delivery and performance of this Agreement
and the other Ancillary Agreements, (B) determining that the terms of the Merger and the other transactions contemplated by this Agreement
are fair to and in the best interests of the Company and its stockholders, and (C) recommending that the Company’s stockholders
adopt this Agreement and execute the Written Consent, to the extent required by Legal Requirements. The only vote of holders of any class
or series of Company Capital Stock necessary to approve and adopt this Agreement and the Merger is: the approval and adoption of this
Agreement by the affirmative vote of the holders of a majority of the outstanding shares of Company Voting Common Stock and the Company
Preferred Stock (voting on an as converted to Company Common Stock basis) voting together as a single class. No other vote of the holders
of Company Capital Stock is required to consummate any of the transactions, other than the Merger, contemplated by this Agreement or
the Ancillary Agreements. Neither Section 203 of the DGCL nor any other state takeover statute is applicable to the Company, the Merger
or the other transactions contemplated by this Agreement.


 


Section
3.03     Authorization of Governmental Authorities.


 


(a)       Except
as disclosed on Schedule 3.03, the execution and delivery of this Agreement by the Company does not, and the consummation of the
transactions contemplated hereby will not, require any consent, approval, clearance, order or authorization of, or registration, declaration
or filing with, any Governmental Authority.


 


(b)       The
Company represents and warrants that it is not, and will not at the time of the Closing be, a “person” (as defined in 16
C.F.R. § 801.1(a)(1)) with $18.4 million or more of total assets or annual net sales, in each case as determined in accordance with
16 C.F.R. § 801.11.


 


Section
3.04     Noncontravention. Except as disclosed on Schedule 3.04,
none of the authorization, execution, delivery or performance by the Company of this Agreement or any Ancillary Agreement nor the consummation
of the Contemplated Transactions, will:


 


(a)       assuming
the taking of each action by (including the obtaining of each necessary authorization, consent or approval), or in respect of, and the
making of all necessary filings with, Governmental Authorities, in each case, as disclosed on Schedule 3.04(a) conflict


 




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with
or result in a breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute
a default) under, any Legal Requirement applicable to any member of the Company Group, the Business or any Assets of any member of the
Company Group; or


 


(b)       conflict
with or result in a breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute
a default) under, or result in termination of, or accelerate the performance required by, or result in a right of termination or acceleration
under or to otherwise modify, or require any action by (including any authorization, consent or approval) or notice to any Person, or
require any offer to purchase or prepayment of any Indebtedness or Liability under, or result in the creation of any Encumbrance upon
or forfeiture of any of the rights, properties or assets of any member of the Company Group under, any of the terms, conditions or provisions
of (i) the Organizational Documents of any member of the Company Group, (ii) any Permit applicable to or otherwise affecting any member
of the Company Group the Business or any Assets of any member of the Company Group, (iii) any Contractual Obligation of any member of
the Company Group that are set forth on Schedule 3.18, or (iv) except as contemplated by this Agreement or with respect to Permitted
Encumbrances, result in the creation of any Encumbrance upon any of the assets of any member of the Company Group.


 


Section
3.05     Capitalization of the Company Group.


 


(a)       Authorized
and Outstanding Equity Interests. The entire authorized capital stock (or, where applicable, other Equity Interests) of each member
of the Company Group is as set forth on Schedule 3.05(a). All of the outstanding Equity Interests of each member of the Company
Group are held of record by the Persons in the respective amounts set forth on Schedule 3.05(a). Except as set forth on Schedule
3.05(a), each member of the Company Group does not have any issued or outstanding Equity Interests or holds shares of its capital
stock (or other Equity Interests) in its treasury. The Company has delivered to Parent accurate and complete copies of the stock ledger
(or equivalent records) of each member of the Company Group, which records reflect all issuances, transfers, repurchases and cancellations
of shares of capital stock (or other Equity Interests) of each member of the Company Group. All of the outstanding shares of capital
stock (or, where applicable, other Equity Interests) of each member of the Company Group have been duly authorized, validly issued and
are fully paid and non-assessable. No member of the Company Group has violated any Legal Requirements, including any federal or state
securities laws, or any Contractual Obligations or preemptive or other similar rights of any Person in connection with the issuance,
repurchase or redemption of any of its Equity Interests or other securities.


 


(b)       Outstanding
Equity-Based Awards. Schedule 3.05(b) sets forth the following information, as of the date of this Agreement, with respect
to each Company Option: (i) the name of the holder of such Company Option, (ii) the number of shares of Company Common Stock subject
to such Company Option, (iii) the exercise price of such Company Option, (iv) the date on which such Company Option was granted, (v)
the vesting schedule and the extent to which such Company Option is vested as of the date of this Agreement, (vi) status as an incentive
stock option within the meaning of Section 422 of the Code, and (vii) the expiration date of such


 




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Company
Option. The only plan, program or arrangement under which the Company has granted options to purchase shares of Company Common Stock
is the Equity Plan. Each Company Option was granted in compliance with all applicable Legal Requirements and all terms and conditions
of the Equity Plan, and each Company Option has an exercise price per share of Company Common Stock equal to or greater than the fair
market value of a share of Company Common Stock, as determined by the Company Board in accordance with Section 409A or Section 422 of
the Code, on the date of such grant. Each Company Option and each Company Warrant has an exercise price per share that is less than the
Closing Option Per Share Merger Consideration.


 


(c)       Encumbrances
on Equity Interests, etc. Except as disclosed on Schedule 3.05(c): (i) there are no preemptive rights or other similar rights
in respect of any Equity Interests in any member of the Company Group, (ii) there are no Encumbrances on, or other Contractual Obligations
relating to, the ownership, transfer or voting of any Equity Interests in any member of the Company Group, or otherwise affecting the
rights of any holder of the Equity Interests in any member of the Company Group, (iii) except for the Contemplated Transactions, there
is no Contractual Obligation, or provision in the Organizational Documents of any member of the Company Group which obligates any member
of the Company Group to purchase, redeem or otherwise acquire, or make any payment (including any dividend or distribution) in respect
of, any Equity Interests in any member of the Company Group and (iv) there are no existing rights with respect to registration under
the 1933 Act of any Equity Interests in any member of the Company Group.


 


Section
3.06     Financial Matters.


 


(a)       Financial
Statements. Schedule 3.06(a) includes correct and complete copies of each of the following:


 


(i)       the
audited consolidated balance sheets of SilverCloud Health Limited as of March 31, 2020 (the “Audited Balance Sheet”
and the date thereof, the “Audited Balance Sheet Date”), and March 31, 2019, and the related audited consolidated
statements of income, cash flow and changes in stockholders’ equity of the Company Group for the fiscal years then ended, accompanied
by any notes thereto and the reports of the Company Group’s independent accountants with respect thereto (collectively, the “Audited
Financials”);


 


(ii)       the
unaudited consolidated balance sheet of the Company Group as of April 30, 2021 (the “Most Recent Balance Sheet” and
the date thereof, the “Most Recent Balance Sheet Date”), and the related unaudited consolidated statement of income,
cash flow and changes in stockholders’ equity of the Company Group for the four (4) months then ended (the “Interim Financials”
and, together with the Audited Financials, the “Financials”).


 


(b)       Compliance
with Irish GAAP, etc. Except as disclosed on Schedule 3.06(b), the Financials (including any notes thereto) (i) were prepared
in accordance with the books and records of the Company Group, (ii) have been prepared in accordance with Irish GAAP, consistently applied
(subject, in the case of the unaudited Financials, to normal year-end audit adjustments, the effect of which will not, individually or
in the aggregate, be materially adverse,


 




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and
the absence of footnote disclosure that if presented, would not differ materially from those included in the Audited Financials) and
(iii) fairly present the consolidated financial position of the Company Group as of the respective dates thereof and the consolidated
results of the operations of the Company Group and changes in financial position for the respective periods covered thereby.


 


(c)       Absence
of Undisclosed Liabilities. Except as disclosed on Schedule 3.06(c), the Company Group does not have any material Liabilities
that would be required by GAAP to be reflected on a balance sheet of the Company Group (including the notes thereto), except for (i)
Liabilities set forth on the face of the Audited Balance Sheet, and (ii) Liabilities incurred in the Ordinary Course of Business since
the Audited Balance Sheet Date (none of which results from, arises out of, or relates to any breach or violation of, or default under,
a Contractual Obligation or Legal Requirement).


 


(d)       Accounts
Receivable. All accounts and notes receivable reflected on the Most Recent Balance Sheet and all accounts and notes receivable arising
subsequent to the Most Recent Balance Sheet Date and on or prior to the Closing Date that will be reflected in the Proposed Final Closing
Balance Sheet, have arisen or will arise in the Ordinary Course of Business, represent or will represent legal, valid, binding and enforceable
obligations owed to the Company Group and, subject only to consistently recorded reserves for bad debts set forth on the Most Recent
Balance Sheet or Final Closing Balance Sheet have been, or will be, collected or are, or will be, collectible in the aggregate recorded
amounts thereof in accordance with their terms and, to the Company Group’s Knowledge, will not be subject to any contests, claims,
counterclaims or setoffs.


 


(e)       Banking
Facilities. Schedule 3.06(e) sets forth an accurate and complete list of (i) each bank, savings and loan or similar financial
institution with which each member of the Company has an account or safety deposit box or other similar arrangement, and (ii) the names
of all Persons authorized to draw on any such account or to have access to any such safety deposit box facility or such other arrangement.


 


(f)       Each
member of the Company Group maintains (i) books and records reflecting its assets and liabilities that are accurate in all material respects
and (ii) adequate and effective internal accounting controls which provide reasonable assurance that (A) the control objectives have
minimized the risk of material financial misstatement, (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, and (C) the recorded accountability for items is compared with
the actual levels at reasonable intervals and appropriate action is taken with respect to any differences.


 


(g)       During
the past five (5) years, no director or officer of any member of the Company Group or, to the Company Group’s Knowledge, non-officer
employee, external auditor, external accountant or similar authorized Representative of any member of the Company Group, has received
or otherwise been made aware of any material complaint, allegation or claim, whether written or oral, regarding the accounting or auditing
practices, procedures, methodologies or methods of any member of the Company Group or their respective internal accounting controls,


 




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including
any material complaint, allegation or claim that any member of the Company Group has engaged in questionable accounting or auditing practices.


 


Section
3.07     Absence of Certain Developments. Since the Audited Balance
Sheet Date (a) no Effect has occurred or arisen that has had, or would reasonably be expected to have, a Material Adverse Effect, and
(b) except as disclosed on Schedule 3.07, the Business has been conducted in all material respects in the Ordinary Course of Business
and the Company Group has not (i) taken any action or omitted to take any action that would have violated the provisions of Section
5.02(b) if such provisions had been in effect at all times since the Audited Balance Sheet Date or (ii) suffered any material loss,
damage, destruction or eminent domain taking, whether or not covered by insurance, with respect to any of its material Assets or the
Business.


 


Section
3.08     Indebtedness; Guarantees. The Company Group has no Liabilities
in respect of Indebtedness except as set forth on Schedule 3.08. The Company has no Indebtedness that is evidenced by notes, bonds,
debentures, mortgages or other similar debt securities or Contractual Obligations. Except as set forth on Schedule 3.08, the Company
Group does not have any Liability in respect of a Guarantee of any Indebtedness or other Liability of any other Person.


 


Section
3.09     Assets.


 


(a)       Ownership
of Assets. The Company Group has sole and exclusive, good and valid title to, or, in the case of property held under a lease or other
Contractual Obligation, a sole and exclusive, Enforceable leasehold interest in, or adequate rights to use, all of its properties, rights
and assets, whether real or personal and whether tangible or intangible, including all assets reflected in the Most Recent Balance Sheet
or acquired after the Most Recent Balance Sheet Date, except for such assets that have been sold or otherwise disposed of since the Most
Recent Balance Sheet Date in the Ordinary Course of Business (collectively, the “Assets”). Except as disclosed on
Schedule 3.09(a), none of the Assets is subject to any Encumbrance other than a Permitted Encumbrance.


 


(b)       Sufficiency
of Assets. The Assets comprise all of the assets, properties and rights of every type and description, whether real or personal,
tangible or intangible, that (i) are used or necessary to the conduct of the Business and (ii) are adequate to conduct the Business after
the Closing in substantially the same manner as conducted prior to the Closing.


 


(c)       Condition
of Tangible Assets. All of the material fixtures and other material improvements to the Leased Real Property included in the Assets
(including any Facilities) and all of the material tangible personal property included in the Assets (i) are in all material respects
adequate and suitable for their present uses, (ii) are in good working order, operating condition and state of repair (ordinary wear
and tear excepted), and (iii) have been maintained in all material respects in accordance with normal industry practice.


 


(d)       Investments.
Except as set forth in Schedule 3.09(d), the Company Group (i) does not control, directly or indirectly, or own any direct or
indirect Equity Interest in any Person or (ii) is not subject to any obligation to make any investment (in the form of a loan, capital
contribution or otherwise) in any Person.


 




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Section
3.10     Real Property.


 


(a)       The
Company Group does not own any real property.


 


(b)       Schedule
3.10(b) sets forth a list of the addresses of all real property leased, subleased or licensed by, or for which a right to use or
occupy has been granted to, any member of the Company Group (the “Leased Real Property”). Schedule 3.10(b)
also identifies with respect to each Leased Real Property, each lease, sublease, license or other Contractual Obligation under which
such Leased Real Property is occupied or used including the date of and legal name of each of the parties to such lease, sublease, license
or other Contractual Obligation, and each amendment, modification or supplement thereto (the “Real Property Leases”).


 


(c)       Except
as set forth on Schedule 3.10(c), there are no written or oral leases, subleases, licenses, concessions, occupancy agreements
or other Contractual Obligations granting to any other Person the right of use or occupancy of any of the Leased Real Property and there
is no Person (other than members of the Company Group) in possession of any of the Leased Real Property. With respect to each Real Property
Lease that is a sublease, the representations and warranties in this Section 3.10(c) and Section 3.18(c) and Section
3.18(d) are true and correct with respect to the underlying lease.


 


(d)       The
Company has delivered to Parent accurate and complete copies of the Real Property Leases, in each case as amended or otherwise modified
and in effect, together with extension notices and other material correspondence, lease summaries, notices or memoranda of lease, estoppel
certificates and subordination, non-disturbance and attornment agreements related thereto.


 


(e)       No
eminent domain or condemnation Action is pending or, to the Company Group’s Knowledge, threatened, that would preclude or materially
impair the use of any Leased Real Property. The Company Group’s current use of the Leased Real Property does not violate in any
material respect any restrictive covenant of record that affects the Leased Real Property.


 


Section
3.11     Intellectual Property.


 


(a)       Company
IP and Systems. Except as disclosed on Schedule 3.11(a), the Company owns or has adequate rights to use all Company Group
Technology and all Company Group Intellectual Property Rights without, to the Company Group’s Knowledge, any conflict with, misappropriation
or violation or infringement of, the Intellectual Property Rights of others and the Company Group will continue to own or have adequate
rights to use all such Company Group Technology and Company Group Intellectual Property Rights immediately following the Closing to the
same extent as prior to the Closing. The Company Group (i) lawfully owns, leases or licenses all Systems and such Systems are reasonably
sufficient for the immediate and anticipated needs of the business of each member the Company Group, including as to capacity, scalability,
and ability to process current and anticipated peak volumes in a timely manner, and (ii) will continue to have such rights immediately
after the Closing. Except, with respect to the Technology and Intellectual Property Rights licensed to the Company under the Inbound
IP Contracts identified on Schedule 3.11(d), to the extent provided in such Inbound IP Contracts,


 




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none
of the Company Group Technology or Company Group Intellectual Property Rights is in the possession, custody, or control of any Person
other than the Company.


 


(b)       Infringement.
Except as disclosed on Schedule 3.11(b), to the Company Group’s Knowledge, no member of the Company Group, nor any Predecessor
(i) has interfered with, infringed upon, diluted, misappropriated, or violated any Intellectual Property Rights of any Person, (ii) has
received any charge, complaint, claim, demand, or notice alleging interference, infringement, dilution, misappropriation, or violation
of the Intellectual Property Rights of any Person (including any invitation to license or request or demand to refrain from using any
Intellectual Property Rights of any Person in connection with the conduct of the Business or the use of the Company Group Technology),
or (iii) has agreed to or has a Contractual Obligation to indemnify any Person for or against any interference, infringement, dilution,
misappropriation, or violation with respect to any Intellectual Property Rights other than pursuant to Contractual Obligations with customers
entered into in the ordinary course of business. Except as disclosed on Schedule 3.11(b), to the Company Group’s Knowledge,
no Person has interfered with, infringed upon, diluted, misappropriated, or violated any Company Group Intellectual Property Rights.


 


(c)       Scheduled
Intellectual Property Rights. Schedule 3.11(c) identifies all patents, patent applications, registered trademarks and copyrights,
applications for trademark and copyright registrations, domain names, social media accounts, registered design rights, and other forms
of registered Intellectual Property Rights and applications therefor, owned by, purported to be owned by or exclusively licensed to the
Company Group (collectively, the “Company Group Registrations”). Schedule 3.11(c) also identifies each proprietary
software program, each trade name, each unregistered trademark, service mark, or trade dress, and each unregistered copyright owned or
exclusively licensed by any member of the Company Group that, in each case, is material to the Business. For purposes of this Agreement,
all items listed on Schedule 3.11(c) shall be called “Scheduled Intellectual Property Rights”. Schedule
3.11(c) specifically identifies those items of Scheduled Intellectual Property Rights that are exclusively licensed to any member
of the Company Group, including the identification of the Contractual Obligation pursuant to which each such Intellectual Property Right
is licensed. For each of the Company Group Registrations, Schedule 3.11(c) includes the following information: (i) for each patent
and patent application, the title, patent number or application serial number, jurisdiction, filing date, date issued (if applicable),
inventors, owner of record, and present status thereof; (ii) for each registered trademark and trademark application, the mark, application
serial number or registration number, jurisdiction, filing date, registration date (if applicable), class of goods or services covered,
description of goods or services, owner of record, and present status thereof; (iii) for each domain name, the registration date, any
renewal date, owner of record, and name of the registrar; (iv) for each copyright registration and copyright application, the title of
the work, number and date of such registration or application, owner of record, and jurisdiction; and (v) any actions that must be taken
within ninety (90) days after the date hereof for the purposes of obtaining, maintaining, perfecting, preserving, or renewing any Company
Group Registrations, including the payment of any registration, maintenance, or renewal fees or the filing of any responses to office
actions, documents, applications, or certificates. Each of the Company Group Registrations is valid, subsisting, and enforceable.


 




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(d)       IP
Contracts. Schedule 3.11(d) identifies under separate headings each Contractual Obligation, whether written or oral, (i) under
which any member of the Company Group uses or licenses an item of Company Group Technology or any Company Group Intellectual Property
Rights that any Person besides any member of the Company Group owns other than licenses for open source computer code or off-the-shelf
software commercially available on standard terms for a one-time or annual fee (whichever is higher) of no more than $100,000 (the “Inbound
IP Contracts”), and (ii) under which any member of the Company Group has granted any Person any right or interest in any Company
Group Intellectual Property Rights, excluding rights granted to Company customers in the ordinary course of business, including any right
to use any item of any member of the Company Group or use of or rights in the Company Group Technology or any Company Group Intellectual
Property Rights (including settlement agreements and covenants not to sue) (the “Outbound IP Contracts,” and together
with the Inbound IP Contracts, the “IP Contracts”). Except as provided in the Inbound IP Contracts, no member of the
Company Group owes any royalties or other payments to any Person for the use of any Intellectual Property Rights or Technology. The Company
has delivered to Parent accurate and complete copies of each of the IP Contracts (or, where an IP Contract is an oral agreement, an accurate
and complete written description of such IP Contract), in each case, as amended or otherwise modified and in effect.


 


(e)       Title
to Company Group Technology and Company Group Intellectual Property Rights. Except as disclosed on Schedule 3.11(e):


 


(i)       the
Company Group possesses all worldwide rights, title, and interests in and to each item of Company Group Technology and Company Group
Intellectual Property Rights that is not licensed to a member of the Company Group pursuant to an Inbound IP Contract identified on Schedule
3.11(d), free and clear of any Encumbrance other than licenses granted in the Outbound IP Contracts identified on Schedule 3.11(d);
and


 


(ii)       with
respect to (A) each item of Company Group Technology and Company Group Intellectual Property Rights that is not licensed to the Company
pursuant to an Inbound IP Contract identified on Schedule 3.11(d), and (B) all Company Group Technology and Company Group Intellectual
Property Rights licensed to the Company Group on an exclusive basis, to the Company Group’s Knowledge, such item or right is not
subject to any outstanding Government Order, and no Action (including any opposition, interference, or re-examination) is pending or
threatened, which challenges the legality, validity, enforceability, use, or ownership of such right or item.


 


(f)       Confidentiality
and Invention Assignments. The Company Group has maintained commercially reasonable practices to protect the confidentiality of the
Company Group’s confidential information and trade secrets (including source code included in Company Group Technology) and, except
as disclosed on Schedule 3.11(f), has required all employees and other Persons with access to such confidential information to
execute Enforceable Contractual Obligations requiring them to maintain the confidentiality of such information and use such information
only for the benefit of the Company Group. All Persons, including current and former employees and independent contractors of the Company
Group who contributed to the Company


 




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Group
Technology that is incorporated in any product or service of the Company Group have executed Enforceable Contractual Obligations that
assign to the Company Group all of such Person’s respective rights, including Intellectual Property Rights, relating to such product
or service.


 


(g)       Computer
Code. Schedule 3.11(g) lists all open source computer code contained in or used in the development of Company Group Technology
or any product or service of the Company Group and describes (i) the applicable software name and version number, (ii) the license under
which such code was obtained, and (iii) the manner in which such code is used. Except as disclosed on Schedule 3.11(g), none of
the Company Group Technology or any product or service of the Company Group constitutes, contains, or is dependent on any open source
computer code, and none of the Company Group Technology or any product or service of the Company Group is subject to any IP Contract
or other Contractual Obligation that would require the Company Group to divulge to any Person any source code or trade secret that is
part of the Company Group Technology. For all computer code included in Company Group Technology (x) the Company Group has in its possession
its source code in catalogued versions that will be accessible by their employees, (y) it has been catalogued and documented in all material
respects as reasonably necessary to enable competently skilled programmers and engineers to use, update, and enhance the source code
by readily using the existing source code and documentation, and (z) the Company Group has the right to use all software development
tools, library functions, compilers and other software that is required to operate, modify, distribute and support its source code.


 


Section
3.12     Compliance with Laws; Permits.


 


(a)       Except
as set forth on Schedule 3.12(a), no member of the Company Group is in violation, default or breach in any material respect, or
during the past three (3) years has been in violation, default or breach in any material respect, of any Legal Requirement or Government
Order applicable to the Company Group. Except as set forth on Schedule 3.12(a), during the past three (3) years, no member of
the Company Group (i) has received any written (or to the Company Group’s Knowledge, oral) notification or communication from any
Governmental Authority asserting that any member of the Company Group is not in compliance in any material respect with any applicable
Legal Requirement or Government Order, (ii) entered into or been subject to any Government Order, or (iii) has been the subject of an
actual, pending, or, to the Company Group’s Knowledge, threatened investigation by any Governmental Authority with regard to any
Legal Requirement.


 


(b)       Schedule
3.12(b) contains a list of all Permits owned or possessed by each member of the Company Group that are necessary to operate the Business
as currently conducted. Except as set forth on Schedule 3.12(b), each such Permit is in full force and effect, and such member
of the Company Group is in compliance in all material respects with all of its obligations with respect to such Permits. No Governmental
Authority has alleged non-compliance with, or threatened the revocation, cancellation, termination, suspension, restriction or modification
of any such Permit. No event has occurred which allows, or upon the giving of notice or the passage of


 




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time
or both would constitute a breach, violation or default of such Permit, or allow, the revocation, cancellation, termination, suspension,
restriction or modification of any such Permit.


 


(c)       No
member of the Company Group, nor any of its stockholders, owners, managers, members, directors, officers, employees, contractors or agents,
while acting on behalf of such member of the Company Group, has (i) directly or indirectly, given, or agreed to give, any illegal gift,
contribution, payment or similar benefit to any supplier, customer, governmental official or employee or other Person who was, is or
may be in a position to help or hinder such member of the Company Group (or assist in connection with any actual or proposed transaction)
or made, or agreed to make, any illegal contribution, or reimbursed any illegal political gift or contribution made by any other Person,
to any candidate for federal, state, local or foreign public office or (ii) established or maintained any unrecorded fund or asset or
made any false entries on any books or records for any purpose.


 


(d)       No
member of the Company Group, nor any of its stockholders, owners, managers, members, directors, officers, employees, contractors or agents,
while acting on behalf of such member of the Company Group, has engaged in unfair competition or trade practices or any false, deceptive,
unfair, or misleading advertising or promotional practices under the Legal Requirements of any jurisdiction in which such member of the
Company Group operates or markets any of its products. Each member of the Company Group is in compliance with all social media regulations,
policies, and guidance established by the Federal Trade Commission. Each member of the Company Group has not received any notifications
or been subject to any investigations from the FDA, Federal Trade Commission, or other Governmental Authorities regarding its products,
advertising, or promotional practices.


 


(e)       Each
healthcare professional, including without limitation mental health providers and coaches, currently employed by, contracted with, or
providing services to or on behalf of the Company Group that requires a Permit to provide any such services is duly licensed, certified
or credentialed, as applicable, pursuant to applicable Healthcare Laws and, as of the date hereof, such license or certification is not
subject to suspension, revocation or restriction in any manner that would materially prevent such Person from providing services to or
on behalf of the Company Group in the Ordinary Course of Business. No such health care professional has been: (i) convicted under any
Healthcare Laws of a criminal offense in connection with the delivery of healthcare services, including without limitation mental health
services or (ii) to the Company Group’s Knowledge, been party to any Action instituted by any licensure board, third-party payor,
customer or Governmental Authority.


 


Section
3.13     Data Privacy and Security.


 


(a)       Processing.
On each website and online service operated by any member of the Company Group, the Company Group has posted a written public-facing
policy that accurately discloses how it Processes Personal Information. The Company Group’s Processing of Personal Information
is and during the past three (3) years has been in material compliance with all applicable Legal Requirements, Contractual Obligations
(including privacy policies and terms of use), and Privacy Obligations.


 




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(b)       Third
Parties. Each member of the Company Group has contractually obligated all third party service providers, outsourcers, processors,
or other third parties Processing Personal Information, in each case on behalf of the Company Group, to (i) comply with applicable Privacy
Obligations, (ii) take reasonable steps to protect and secure Personal Information and Sensitive Data from loss, theft, unauthorized
access, use, modification, disclosure or other misuse, and (iii) maintain a written information privacy and security program (including
programs with respect to cybersecurity and disaster recovery) that establishes reasonable and appropriate measures to protect the privacy,
operation, confidentiality, integrity and security of all Personal Information and Sensitive Data against any Security Breach.


 


(c)       Authorizations.
Each member of the Company Group has legal authority to transfer all Personal Information related to the Business and can and will convey
to Parent rights in such Personal Information sufficient to allow the Parent to use such Personal Information in the Ordinary Course
of Business in compliance with applicable Privacy Obligations. The execution, negotiation, delivery, performance, and consummation of
the transactions contemplated herein will not violate any (i) of the Company Group’s applicable privacy notices and policies and
(ii) applicable Privacy Obligations.


 


(d)       Compliance
and Safeguards. Each member of the Company Group maintains and complies and has maintained and complied during the past three (3)
years with a written information security program that is comprised of reasonable and appropriate physical, technical, organizational
and administrative security measures and policies. Such information security program is designed to protect the security, confidentiality,
integrity and availability of the Company’s IT Assets, including all Sensitive Data Processed thereby and contained therein, and
complies with all applicable Legal Requirements, Contractual Obligations, and Privacy Obligations.


 


(e)       Privacy
and Data Security Incidents. In the past three (3) years, there have been no material Security Breaches or incidents of compromise,
or other unauthorized or unlawful Processing of any Systems, Personal Information or Sensitive Data owned, used or held for use by or
on behalf of any member of the Company Group. No Person has alleged or given written notice of any Security Breaches, and no member of
the Company Group has notified in writing, or been required by applicable Legal Requirement, Governmental Authority or Privacy Obligation
to notify in writing, any Person of any Security Breach. The Systems do not contain any viruses, bugs, vulnerabilities, faults or other
disabling code that could (i) significantly disrupt or adversely affect the functionality or integrity of any System, or (ii) enable
or assist any Person to access without authorization any System or to maliciously disable, maliciously encrypt, or erase any System,
hardware, or data. In the past three (3) years, there has been no failure or other substandard performance of any System that has caused
a material disruption to the business of the Company Group.


 


(f)       Complaints
and Investigations. In the past three (3) years, no member of the Company Group has received any written complaint, notice of any
claims, investigations (including investigations by a Governmental Authority) regarding any (i) Security Breach, or (ii)


 




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any
alleged violations of Privacy Obligations, and there is no reasonable basis for any such Actions.


 


(g)       HIPAA
Compliance. Each member of the Company Group is, and for the past three (3) years has been, in material compliance with HIPAA. Each
member of the Company Group in the past three (3) years (i) has adopted and has been in compliance with, written privacy and security
compliance policies and procedures in compliance with HIPAA, and (ii) has entered into “Business Associate” and “Subcontractor
Business Associate” agreements as such terms are defined under HIPAA when required by HIPAA. Each member of the Company Group is
in material compliance with the terms of all “Business Associate” and “Subcontractor Business Associate” agreements,
and no such contractor or subcontractor has, in the past three (3) years, breached any such Business Associate Agreement or Subcontractor
Business Associate Agreement with any member of the Company Group. No member of the Company Group has been subject to a “Breach”
as such term is defined at 45 C.F.R. § 164.402. Each member of the Company Group has completed a security “risk analysis”
(as required by 45 C.F.R. § 164.308(a)(1)(ii)(A)) in compliance with HIPAA at least once every 12 months since the requirement to
perform such a security risk analysis first became applicable to it. In the past three (3) years, no member of the Company Group has
received notice from any Governmental Authority nor has any Action been filed or commenced against any member of the Company Group, in
each case to the effect that such member of the Company Group is not in compliance with HIPAA. There have been no investigations by,
or complaints to, the United States Department of Health and Human Services Office for Civil Rights with respect to HIPAA compliance
by any member of the Company Group.


 


Section
3.14     Compliance with Healthcare Legal Requirements.


 


(a)       Except
as set forth on Schedule 3.14(a), no member of the Company Group is in violation, default or breach in any material respect, or
during the past three (3) years has been in violation, default or breach in any material respect, of any Healthcare Laws.


 


(b)       No
member of the Company Group, nor any of its stockholders, owners, managers, members, directors, officers, employees, contractors or agents,
has been or is currently suspended, excluded or debarred from any government procurement program or any Payment Program, or, to the Company
Group’s Knowledge, threatened with or currently subject to an investigation or proceeding that could result in suspension, exclusion
or debarment from any government procurement programs or and Payment Programs, including under 42 U.S.C. § 1320a-7 or relevant regulations
in 42 C.F.R. Part 1001, or assessed or threatened with assessment of civil monetary penalties pursuant to 42 C.F.R. Part 1003 or has
been convicted of a criminal offense related to the provision of healthcare items or services.


 


(c)       No
member of the Company Group has, in the past three (3) years, received notice from any Governmental Authority of any violation or alleged
violation of any Healthcare Laws or of any investigation conducted by any Governmental Authority in connection with any Healthcare Laws.
No member of the Company Group is currently, or during the last three (3) years has been, with respect to any Governmental Authority:
(i) party to any settlement, judgment, corporate integrity agreement, deferred prosecution agreement, non-prosecution agreement,


 




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consent
decree, monitoring agreement, certification of compliance agreement, or other similar agreement or order that (A) requires the payment
of money by such member of the Company Group to any Governmental Authority, (B) requires any recoupment of money from such member of
the Company Group by any Governmental Authority or (C) prohibits any activity currently conducted by such member of the Company Group;
or (ii) subject to any actual or any proposed settlement, judgment, corporate integrity agreement, deferred prosecution agreement, non-prosecution
agreement, consent decree, monitoring agreement, certification of compliance agreement, or other similar agreement or order with any
Governmental Authority, in the case of each of clauses (i) and (ii), which relates to Healthcare Laws. No member of the Company Group
is a defendant or named party in any unsealed qui tam/False Claims Act litigation, nor, to the Company Group’s Knowledge, has any
qui tam/False Claims Act litigation been threatened against any member of the Company Group. No member of the Company Group has
been served with, received or otherwise notified of any search warrant, subpoena, civil investigative demand, or notice by or from any
Governmental Authority seeking documents or information related to compliance with or violation of, or alleging a violation or potential
violation of, any Legal Requirements, or threatening to impose any penalty or sanction or to take any other enforcement action against
any member of the Company Group.


 


(d)       Each
member of the Company Group has established and implemented a healthcare compliance program and the necessary policies and procedures
to support its performance of its contractual and regulatory obligations. No member of the Company Group has received notice in connection
with any regulatory or customer audits of non-compliance with applicable Legal Requirements or Contractual Obligations.


 


(e)       No
member of the Company Group has submitted, or caused the submission of, any false or fraudulent claim to any third party in violation
of any Healthcare Law, and has not received any notice from any third party for any such violation or any allegation of a billing or
coding mistake, overpayment, false claim or fraud relating to such member of the Company Group’s services.


 


(f)       No
member of the Company Group, nor any of its stockholders, owners, managers, members, directors, officers, employees, contractors or agents,
has offered or paid any remuneration (including any kickback, bribe, rebate, payoff, influence payment or inducement) directly or indirectly,
overtly or covertly, in cash or in kind, to any Person to induce such Person (i) to refer an individual to a Person for the furnishing
or arranging for the furnishing of any item or service in violation of any Healthcare Law; or (ii) to purchase, lease, order, arrange
for or recommend purchasing, leasing or ordering any good, facility, service or item in violation of any Healthcare Law or to obtain
or maintain favorable treatment in securing business in violation of any applicable Healthcare Law.


 


(g)       The
Company Group Technology is not subject to FDA premarket submission requirements as established by FDA Laws and applicable guidance.


 


(h)       No
member of the Company Group has received any Form FDA-483, notice of adverse finding, warning letter, notice of violation or “untitled
letter,” notice of FDA action for


 




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import
detention or refusal, or any other notice from the FDA or any other Governmental Authority. Each member of the Company Group has made
all notifications, submissions, responses and reports required by FDA Laws or any other Legal Requirement, including such obligation
arising under any administrative, enforcement or regulatory action, inspection, warning letter, notice of violation letter, or other
notice, response or commitment made to or with the FDA or any comparable Governmental Authority and all such notifications, submissions
and reports were correct and complete in all material respects as of the date of submission to the FDA or any comparable Governmental
Authority.


 


Section
3.15     Tax Matters.


 


(a)       Each
member of the Company Group has filed, or has caused to be filed on its behalf, all Tax Returns required to be filed by it in accordance
with all Legal Requirements. All such Tax Returns were true, correct and complete in all material respects. All material Taxes owed by
each member of the Company Group (whether or not shown on any Tax Return) have been paid in full. No claim in writing has been made by
a Governmental Authority in a jurisdiction where any member of the Company Group does not file Tax Returns that any member of the Company
Group is or may be subject to taxation by or required to file Tax Returns in that jurisdiction. There are no Encumbrances with respect
to Taxes upon any Asset other than Permitted Encumbrances for current Taxes not yet due and payable.


 


(b)       Each
member of the Company Group has deducted, withheld and timely paid to the appropriate Governmental Authority all Taxes required to be
deducted, withheld or paid in connection with amounts paid or owing to any current or former employee, independent contractor, creditor,
stockholder or other third party, and each member of the Company Group has complied in all material respects with all related reporting
and recordkeeping requirements.


 


(c)       There
is no pending, or to the Company Group’s Knowledge threatened, Action concerning any Tax Liability, Tax Return or other Tax item
of any member of the Company Group. The Company has delivered to Parent complete copies of all Tax Returns, examination reports, and
statements of deficiencies filed, assessed against, or agreed to by each member of the Company for the past three (3) years.


 


(d)       No
member of the Company Group has waived any statute of limitations in respect of Taxes, and has not agreed to, nor is the beneficiary
of any extension of time with respect to a Tax assessment, adjustment or deficiency. No member of the Company Group has executed any
power of attorney with respect to any Tax, other than powers of attorney that are no longer in force. No closing agreements, private
letter rulings, technical advice memoranda or similar agreements or rulings relating to Taxes have been entered into or issued by any
Governmental Authority with or, to the Company Group’s Knowledge, in respect of any member of the Company Group.


 


(e)       The
unpaid Taxes of the Company Group for Pre-Closing Tax Periods will not exceed the amount of Taxes included in Closing Indebtedness, Closing
Net Working Capital,


 




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the
Change of Control Payments or Company Transaction Expenses as finally determined pursuant to Section 2.02.


 


(f)       No
member of the Company Group has ever been a member of an “affiliated group” within the meaning of Code Section 1504(a) filing
a consolidated federal income Tax Return or any other affiliated, consolidated, combined or unitary group (other than the common parent
of which is the Company). No member of the Company Group is a party to any Contractual Obligation relating to Tax sharing, allocation
or indemnification (other than commercial agreements the primary purpose of which does not relate to Taxes). No member of the Company
Group has any Liability for the Taxes of any Person under Treasury Regulation 1.1502-6 (or any similar provision of state, local or foreign
law), as a transferee or successor, by contract (other than commercial contracts the primary purpose of which does not relate to Taxes)
or otherwise.


 


(g)       Since
the Audited Balance Sheet Date, no member of the Company Group has changed or revoked any material Tax election, or made any material
Tax election (other than elections made in the Ordinary Course of Business) changed any annual Tax accounting period, adopted or changed
any method of Tax accounting in respect of material Taxes, filed any amended material Tax Return or filed any material Tax Return in
a manner inconsistent with past practice, entered into any Contractual Obligation (other than any commercial agreements the primary purpose
of which does not relate to Taxes) in respect of material Taxes with any Governmental Authority, including any closing agreement, settled
any material Tax Action, surrendered any right to claim a material Tax refund, consented to any extension or waiver of the limitations
period applicable to any material Tax claim or assessment outside the Ordinary Course of Business.


 


(h)       No
member of the Company is required to make any material adjustment pursuant to Code Section 481(a) (or any predecessor provision) or any
similar provision of state, local or foreign Tax law by reason of any change in any accounting methods, and there is no application pending
with any Governmental Authority requesting permission for any changes in any of its accounting methods for Tax purposes. To the Company
Group’s Knowledge, no Governmental Authority has proposed any such adjustment or change in accounting method of any member of the
Company Group.


 


(i)       No
member of the Company Group will be required to include any material amount in taxable income or exclude any material item of deduction
or loss from taxable income for any taxable period (or portion thereof) ending after the Closing Date which taxable income was realized
(and reflects economic income arising) prior to the Closing as a result of (i) any “closing agreement” as described in Code
Section 7121 (or any corresponding or similar provision of state, local or foreign income Tax law) executed prior to the Closing, (ii)
any deferred intercompany gain or excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding
or similar provision or administrative rule of federal, state, local or foreign income Tax law), (iii) installment sale or open transaction
disposition made on or prior to the Closing, or (iv) any prepaid amount received on or prior to the Closing.


 


(j)       During
the past two (2) years, no member of the Company Group has ever constituted either a “distributing corporation” or a “controlled
corporation” (within the meaning


 




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of
Code Section 355(a)(1)(A)) in a distribution of stock to which Code Section 355 (or so much of Code Section 356 as relates to Code Section
355) or Code Section 361 applies.


 


(k)       No
member of the Company Group has participated in any “listed transaction” within the meaning of Treasury Regulations Section
1.6011-4(b)(2) or any “tax shelter” within the meaning of Section 6662 of the Code.


 


(l)       Each
member of the Company Group is and has at all times been resident for Tax purposes in its country of incorporation or formation and is
not and has not at any time been resident in any other country for any Tax purpose (including any arrangement for the avoidance of double
taxation) or been subject to Tax in any country other than the country of incorporation or formation by virtue of having a branch, permanent
establishment, place of control and management or other place of business in that country. Each member of the Company Group is
in compliance in all material respects with all applicable transfer pricing laws and regulations.


 


Section
3.16     Employee Benefit Plans.


 


(a)       Schedule
3.16(a) lists each material Employee Plan (and each Employee Plan’s plan sponsor) which any member of the Company Group sponsors,
maintains, to which any member of the Company Group contributes or is obligated to contribute, or under which any member of the Company
Group has or may have any Liability, or which benefits any current or former employee, director, manager, officer or independent contractor
of any member of the Company Group or the beneficiaries or dependents of any such Person (each a “Company Group Plan”).
With respect to each Company Group Plan, the Company has delivered to Parent accurate, current and complete copies of each of the following:
(i) the plan document together with all amendments thereto (or if the plan has not been reduced to writing, a written summary of all
material plan terms), (ii) if applicable, any trust agreements, custodial agreements, insurance policies or contracts, administrative
agreements and similar agreements, and investment management or investment advisory agreements, (iii) the most recent summary plan description
and any summaries of material modification, any employee handbooks or similar material employee communications, (iv) in the case of any
plan that is intended to be qualified under Code Section 401(a), the most recent determination letter or opinion letter from the IRS,
(v) in the case of any plan for which Forms 5500 are required to be filed, the most recently filed Forms 5500, with schedules attached
and (vi) any notices, letters or other non-routine correspondence from the IRS, the Department of Labor or any Governmental Authority
relating to such Company Group Plan.


 


(b)       No
Company Group Plan is (i) an “employee pension benefit plan” (within the meaning of ERISA Section 3(2)) subject to Code Section
412 or Title IV of ERISA or ERISA Section 302 or (ii) a “multiple employer plan” within the meaning of the Code or ERISA.


 


(c)       At
no time during the six (6) years preceding the Closing Date has any member of the Company Group or any other Person, trade or business
that together with such member of the Company Group would be considered a single employer under Section 414 of the Code or Section 4001(b)(1)
of ERISA (each such Person, an “ERISA Affiliate”) contributed to,


 




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had
an obligation to contribute to, or maintained, and no member of the Company Group has or could have any Liability (including by reason
of its relationship to an ERISA Affiliate), with respect to, (i) a plan subject to Title IV of ERISA or Code Section 412, (ii) a “multiemployer
plan” as defined in Sections 3(37) or 4001(a)(3) of ERISA. (iii) a “multiple employer plan” (as defined in Section
210 of ERISA or Section 413(c) of the Code), or (iv) “multiple employer welfare arrangement” (as defined in Section 3(40)
of ERISA or applicable state law).


 


(d)       Each
Company Group Plan that is intended to be qualified under Code Section 401(a) has received a favorable determination letter or opinion
letter from the IRS upon which it may rely and nothing has occurred that would reasonably be expected to adversely affect such qualification
or result in material Liability to any member of the Company Group. Each Company Group Plan, including any associated trust or fund,
has been established, maintained, administered and funded in accordance with its terms and any applicable collective bargaining agreements
and with all applicable Legal Requirements, in each case, in all material respects, and nothing has occurred with respect to any Company
Group Plan that has subjected or could subject any member of the Company Group to any material Liability.


 


(e)       All
required contributions to, and premium payments on account of, each Company Group Plan, or to any current or former employee or service
provider under the terms of any Company Group Plan, have been made in full or properly accrued, in each case, on a timely basis.


 


(f)       There
is no pending or, to the Company Group’s Knowledge, threatened Action relating to a Company Group Plan, other than routine claims
in the Ordinary Course of Business for benefits provided for by the Company Group Plans. No Company Group Plan is or, within the last
six (6) years, has been the subject of an examination or audit by a Governmental Authority, is the subject of an application or filing
under, or is a participant in, a government-sponsored amnesty, voluntary compliance, self-correction or similar program.


 


(g)       No
prohibited transaction (as defined in Code Section 4975 and Section 406 of ERISA) has occurred with respect to a Company Group Plan for
which no exemption exists under Section 408 of ERISA and Code Section 4975 and which could subject any member of the Company Group or
any of its directors, officers, employees or agents to a material Tax or other material Liability. All employees that are eligible to
participate in each Company Group Plan under the terms of such Company Group Plan and all applicable Legal Requirements have been permitted
to participate in such Company Group Plan.


 


(h)       Except
as required under Section 601 et seq. of ERISA, no Company Group Plan provides current or future benefits or coverage in the nature
of health, life, disability or welfare insurance following retirement or other termination of employment.


 


(i)       Each
Company Group Plan that is a “group health plan” for purposes of the Patient Protection and Affordable Care Act and the Health
Care and Education Reconciliation Act (the “Affordable Care Act”) has been established, maintained and administered
in compliance in all material respects with the Affordable Care Act, including, without limitation, offering


 




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healthcare
coverage that does not subject any member of the Company Group to any assessment under Code Sections 4980H(a) or 4980H(b). No member
of the Company Group nor any ERISA Affiliates, are reasonably expected to have any Liability for Taxes under Sections 4975 through 4980
or Sections 4980A through 4980H of the Code.


 


(j)        Each
“nonqualified deferred compensation plan” (as defined in Code Section 409A(d)(1) and applicable regulations) with respect
to any service provider to any member of the Company Group complies and has been operated in compliance with the requirements of Code
Section 409A and regulations promulgated thereunder.


 


(k)       Except
as set forth in Schedule 3.16(k), neither the execution, delivery or performance of this Agreement nor the consummation of the
Contemplated Transactions (alone or together with any other event which standing alone would not by itself trigger such entitlement or
acceleration) will (i) entitle any current or former employee, director, manager, officer or independent contractor of any member of
the Company Group or any of its Affiliates to severance pay, unemployment compensation or termination pay, or any other payment from
any member of the Company Group, (ii) result in any payment becoming due or accelerate the time of payment, funding or vesting, or increase
the amount of compensation or benefit due any current or former employee, director, manager, officer or other service provider of any
member of the Company Group, (iii) limit in any way the right of any member of the Company Group, Parent, or their respective Affiliates
to amend or terminate any Company Group Plan at any time, (iv) create any right to employment, continued employment, or any term or condition
of employment with any member of the Company Group, Parent, or their respective Affiliates, or (v) result in any payment or benefit that,
individually or taken together with any other payments or benefits, could (without accounting for any reduction thereto) result in the
imposition of any penalty or Tax under Section 280G or 4999 of the Code (or any corresponding provisions of state, local or foreign Tax
law). No member of the Company Group has any indemnity or gross-up obligation for any Taxes imposed under Section 4999 or Section 409A
of the Code.


 


(l)        Each
Company Group Plan and any related contracts may be amended or terminated without penalty other than the payment of benefits, fees or
charges accrued or incurred through the date of termination.


 


(m)       Except
as set forth in Schedule 3.16(k), there are no Company Group Plans that are subject to Legal Requirements of a jurisdiction outside
the United States.


 


Section
3.17     Environmental Matters. Except as set forth in Schedule
3.17, (a) each member of the Company Group and its Predecessors are, and have been, in compliance in all material respects with all
Environmental Laws, (b) there has been no release or threatened release of any material amount of any Hazardous Substance on, upon, into
or from any site currently or heretofore leased or otherwise operated or used by any member of the Company Group or a Predecessor thereof,
(c) there have been no Hazardous Substances generated by any member of the Company Group or a Predecessor thereof that have been disposed
of or come to rest at any site that has been included in any published U.S. federal, state or local “superfund” site list
or any other similar list of hazardous or toxic waste sites published by any Governmental Authority in the


 




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United
States, (d) there are no underground storage tanks located on, no PCBs (polychlorinated biphenyls) or PCB-containing equipment used or
stored on, and no hazardous waste as defined by the Resource Conservation and Recovery Act stored on, any site leased or operated by
any member of the Company Group or a Predecessor thereof, except for the storage of hazardous waste in compliance with Environmental
Laws and (e) the Company has delivered to Parent accurate and complete copies of all material environmental records, reports, notifications,
certificates of need, permits, pending permit applications, correspondence, engineering studies, and environmental studies or assessments
for the Company Group, in each case as amended and in effect.


 


Section
3.18     Contracts.


 


(a)       Contracts.
Except as disclosed in the applicable subsection of Schedule 3.18 (which is arranged in subsections numbered (i) to (xviii) to
correspond to the subsections of this Section 3.18), no member of the Company Group is bound by or a party to:


 


(i)       any
Contractual Obligation for the purchase, of supplies, goods, products, equipment or other property, or for the receipt of services, in
each case, the performance of which will extend over a period of more than one year or which provides for (or would be reasonably expected
to involve) annual payments by any member of the Company Group in excess of $250,000;


 


(ii)       any
Contractual Obligation for the sale of goods, products, equipment or other property, or for the furnishing of services, by any member
of the Company Group, the performance of which provides annual payments by any member of the Company Group in excess of $250,000;


 


(iii)       any
Contractual Obligation relating to the acquisition or disposition by any member of the Company Group of (A) any business (whether by
merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (B) any material Asset (other
than in the Ordinary Course of Business);


 


(iv)       any
Contractual Obligation concerning or consisting of a partnership, limited liability company, joint venture or similar agreement;


 


(v)       any
Contractual Obligation under which the Company has permitted any Asset to become subject to an Encumbrance (other than a Permitted Encumbrance);


 


(vi)       any
Contractual Obligation (A) under which any member of the Company Group has created, incurred, assumed or guaranteed any Indebtedness
or (B) under which any other Person has guaranteed any Indebtedness of the Company Group;


 


(vii)       any
Contractual Obligation containing covenants that in any way purport to (A) restrict any business activity (including the solicitation,
hiring or engagement of any Person or the solicitation of any customer other than Contractual Obligations entered into in the Ordinary
Course of Business) of any member of the Company Group or any Affiliate thereof or


 




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(B)
limit the freedom of any member of the Company Group or any Affiliate thereof to engage in any line of business or compete with any Person;


 


(viii)       any
Contractual Obligation under which any member of the Company Group is, or may become, obligated to incur any severance pay or other Compensation
obligations that would become payable by reason of this Agreement or the Contemplated Transactions;


 


(ix)       any
Contractual Obligation under which any member of the Company Group is, or may, have any Liability to any investment bank, broker, financial
advisor, finder or other similar Person (including an obligation to pay any legal, accounting, brokerage, finder’s, or similar
fees or expenses) in connection with this Agreement or the Contemplated Transactions;


 


(x)       any
Contractual Obligation providing for the employment or engagement of any Person on a full-time, part-time, independent contractor, temporary
or other basis or otherwise providing Compensation or other benefits to any officer, director, manager, employee, or independent contractor,
in each case, with base salary or fees in excess of $160,000 (other than a Company Group Plan);


 


(xi)       any
agency, broker, dealer, distributor, franchise, sales representative, market research, marketing, consulting or advertising or other
similar Contractual Obligation which has resulted in a payment of more than $35,000;


 


(xii)       all
Contractual Obligations with any Governmental Authority;


 


(xiii)       “Business
Associate Agreements” and “Subcontractor Business Agreements” as such terms are defined under HIPAA;


 


(xiv)       any
Contractual Obligation with any of the Company Group’s Top Customers or Top Suppliers;


 


(xv)       any
Contractual Obligation under which any member of the Company Group has advanced or loaned an amount to any of its Affiliates or employees,
officers, directors or independent contractors;


 


(xvi)       any
collective bargaining agreement or other Contractual Obligation with any Union;


 


(xvii)       any
other Contractual Obligation between any member of the Company Group, on the one hand, and any holder of Company Capital Stock, Company
Options or Company Warrants (or Affiliate or Family Member thereof), on the other hand, that will continue in effect after the Closing;


 


(xviii)       Contractual
Obligations between any member of the Company Group, on the one hand, and any individual on the other hand, providing for indemnification
of


 




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such
individual that could result in payments in excess of $100,000 in any individual case, or $150,000 in the aggregate;


 


(xix)       Contractual
Obligations involving any resolution or settlement of any Action;


 


(xx)       Contractual
Obligations (A) providing for the Company Group to be the exclusive provider of any product or service to any Person or that otherwise
involves the granting by any Person to the Company Group of exclusive rights of any kind, (B) providing for any Person to be the exclusive
or preferred provider of any product or services to the Company Group or that otherwise involves the granting by the Company Group to
any Person of exclusive or preferred rights, or (C) involving a “most-favored-nation” clause or similar term that provides
preferential pricing or treatment; and


 


(xxi)       Contractual
Obligations requiring or otherwise relating to any future capital expenditures by any member of the Company Group in excess of $150,000.


 


(b)       The
Company has delivered to Parent accurate and complete copies of each written Contractual Obligation listed on Schedule 3.18, in
each case, as amended or otherwise modified and in effect and including all supplements, annexes, exhibits and schedules thereto and
written waivers thereunder. The Company has delivered to Parent a written summary setting forth all of the material terms and conditions
of each oral Contractual Obligation listed on Schedule 3.18.


 


(c)       Enforceability,
etc. Each Contractual Obligation required to be disclosed on Schedule 3.10(b) (Leased Real Property), Schedule 3.11(d)
(IP Contracts), Schedule 3.16 (Employee Benefit Plans), Schedule 3.18 (Contracts), Schedule 3.20 (Customers
and Suppliers) and Schedule 3.23 (Insurance) (each, a “Material Company Contract”) is Enforceable against each
party to such Contractual Obligation, and is in full force and effect, and, subject to obtaining any necessary consents disclosed in
Schedule 3.03 and Schedule 3.04, will continue to be so Enforceable and in full force and effect on identical terms following
the consummation of the Contemplated Transactions.


 


(d)       Breach,
etc. No member of the Company Group nor, to the Company Group’s Knowledge, any other party to any Material Company Contract
is in material breach or violation of, or default under, or has repudiated any material provision of, or has provided or received any
notice, whether written or oral, of any intention to terminate or seek renegotiation of, any Material Company Contract. To the Knowledge
of the Company Group, no event or circumstance has occurred that, with or without notice or lapse of time or both, would (i) constitute
a material breach or violation of, or default under, (ii) result in a right of termination for or (iii) cause or permit the acceleration
of or other changes to any right or obligation or the loss of any benefit for, in each case, any party under any Material Company Contract.


 


Section
3.19     Related Party Transactions. Except for the matters disclosed
on Schedule 3.19, no Effective Time Holder or Affiliate of any Effective Time Holder and no officer or director (or equivalent)
of any member of the Company Group (or, to the Company Group’s Knowledge,


 




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any
Family Member of any such Person who is an individual or any entity in which any such Person or any such Family Member thereof owns a
material interest): (a) has any material interest in any material Asset owned or leased by any member of the Company Group or used in
connection with the Business; (b) has engaged in any material transaction, arrangement or understanding with any member of the Company
Group (other than payments made to, and other Compensation provided to, officers and directors in the Ordinary Course of Business); (c)
has during the past five (5) years initiated (or, to the Company Group’s Knowledge, threatened to initiate) any Action against
any member of the Company Group; or (d) provides goods or services to, or receives goods or services from, any member of the Company
Group.


 


Section
3.20     Customers and Suppliers. Schedule 3.20 sets forth
a complete and accurate list of (a) the ten largest customers for the Company Group (measured by aggregate billings) during the twelve
(12) month period ended on June 30, 2021 (the “Top Customers”), indicating the aggregate billings as well as the existing
Contractual Obligations with each such customer by product or service for each provided and (b) the ten largest suppliers of materials,
products or services of the Company Group (measured by the aggregate amount purchased by the Company Group) during the twelve (12) month
period ended on June 30, 2021 (the “Top Suppliers”), indicating the aggregate amount purchased from each as well as
the Contractual Obligations for continued supply from each such supplier. Except as disclosed on Schedule 3.20, none of such customers
or suppliers has canceled, terminated or otherwise materially altered (including any material reduction in the rate or amount of sales
or purchases or material increase in the prices charged or paid, as the case may be) or notified any member of the Company Group of any
intention to do any of the foregoing or otherwise threatened in writing or otherwise, to cancel, terminate or materially alter (including
any material reduction in the rate or amount of sales or purchases or material increase in the prices charged or paid as the case may
be) its relationship with any member of the Company Group.


 


Section
3.21      Employees; Labor Matters.


 


(a)       Schedule
3.21(a) contains a complete and accurate list of the following information for each current employee of the Company Group, including
each employee on leave of absence status: (i) name; (ii) job title; (iii) current base salary and incentive compensation opportunity;
(iv) vacation accrued; (v) service credited for purposes of vesting and eligibility to participate under any Employee Plan; and (vi)
visa status.


 


(b)       No
employee, independent contractor, officer or director of any member of the Company Group is a party to, or is otherwise bound by, any
Contractual Obligation or Government Order, including any confidentiality, non-competition, non-solicitation, no-hire or proprietary
rights agreement, between such employee, independent contractor, officer or director and any other Person that in any way adversely affects
or will affect (i) the performance of his or her duties as an employee, independent contractor, officer or director of any member of
the Company Group, or (ii) the ability of any member of the Company Group to conduct the Business.


 


(c)       The
Company Group is, and for the past three (3) years has been, in material compliance with all applicable Legal Requirements respecting
employment and employment


 




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practices
and terms and conditions of employment, including any provision relating to wages (including minimum wage and overtime), hours of work,
child labor, withholdings and deductions, classification and payment of employees and independent contractors, employment equity, nondiscrimination,
non-harassment and non-retaliation in employment, occupational health and safety, worker’s compensation, employment eligibility
and immigration.


 


(d)       There
is not, and for the past three (3) years there has not been, (i) any Action pending (or, to the Knowledge of the Company Group,
threatened) by or before any Governmental Authority with respect to any member of the Company Group concerning
employment-related matters, (ii) any Action (or, to the Knowledge of the Company Group,
any threatened Action) against or affecting any member of the Company Group brought
by any current or former applicant, employee or independent contractor of any member of the Company Group or any Union;
or (iii) any act or allegation of sex-based discrimination, sexual harassment or sexual misconduct, in each case involving any
member of the Company Group or any current or former officer, executive
or senior manager of any member of the Company Group, nor have there
been any settlements or similar out-of-court or pre-litigation arrangement relating to any such matters.


 


(e)       Except
as disclosed on Schedule 3.21(e), there are no labor troubles (including any work slowdown, lockout, stoppage, picketing or strike)
pending, or to the Company Group’s Knowledge, threatened between any member of the
Company Group, on the one hand, and its employees, on the other hand, and there have been no such troubles for the past three
(3) years. Except as disclosed on Schedule 3.21(e), (a) no employee of any member of the
Company Group is represented by a labor union, trade union, works council or other employee representative body (each, a “Union”),
(b) no member of the Company Group is a party to, or otherwise subject to or presently negotiating, any collective bargaining agreement
or other Contractual Obligation with a Union, (c) no petition has been filed or proceedings instituted by an employee or group of employees
of any member of the Company Group or any Union with any labor relations board seeking recognition of a bargaining representative, (d)
to the Company Group’s Knowledge, there is no organizational effort currently being made or threatened by, or on behalf of, any
Union to organize employees of any member of the Company Group, and there have been no such efforts made or threatened for the past three
(3) years, and (e) no demand for recognition of employees of any member of the Company Group has been made by, or on behalf of, any Union.
No officer’s, executive’s or other key employee’s employment with any member of the Company Group has been terminated
for any reason for the last three (3) years, nor has any current officer, executive, key employee, or group of employees of any member
of the Company Group given notice of termination of employment or otherwise disclosed plans to terminate employment with any member of
the Company Group within the twelve (12) month period following the date hereof.


 


Section
3.22      Litigation; Government Orders.


 


(a)       Litigation.
Except as disclosed on Schedule 3.22(a), there is no Action to which any member of the Company Group (or the stockholders, employees,
directors or officers of any member of the Company Group, to the extent such Actions relate to any member of the Company Group) is a
party (either as plaintiff or defendant) or to which its Assets are or may be subject, including Actions challenging or seeking to prevent,
enjoin or otherwise delay the


 




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Contemplated
Transactions, that is pending, or to the Company Group’s Knowledge, threatened, nor, to the Company Group’s Knowledge, is
there any basis for any of the foregoing. Except as disclosed on Schedule 3.22(a), there is no Action which any member of the
Company Group presently intends to initiate.


 


(b)       Government
Orders. Except as disclosed on Schedule 3.22(b), no Government Order has been issued that is applicable to any member of the
Company Group (or the stockholders, employees, directors or officers of any member of the Company Group, to the extent such Government
Order relate to any member of the Company Group) or its Assets or the Business.


 


Section
3.23     Anti-Corruption and International Risk.


 


(a)       No
member of the Company Group or any director, officer, other employee or agent of any member of the Company Group has violated or operated
in noncompliance with any Anti-Bribery Law. No member of the Company Group or any director, officer, other employee or agent of any member
of the Company Group, has: (i) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating
to political activity; or (ii) offered, promised, provided, or authorized the provision of any money, property, or other thing of value,
directly or indirectly, to any Person to improperly influence official action or secure an improper advantage, or to encourage the recipient
to breach a duty of good faith or loyalty or the policies of his/her employer. The members of the Company Group have established internal
controls and procedures reasonably designed to ensure compliance with Anti-Bribery Laws.


 


(b)       No
member of the Company Group or any director, officer, other employee or agent of any member of the Company Group has violated or operated
in noncompliance with any Global Trade Law. No member of the Company Group or any director, officer, other employee or agent of any member
of the Company Group, (a) is or was a Restricted Party or (b) has engaged in any business or dealings (directly or indirectly) involving
any Restricted Party or Person located, organized, or ordinarily resident in any Restricted Country. Members of the Company Group have
established internal controls and procedures reasonably designed to ensure compliance with Global Trade Laws.


 


(c)       No
member of the Company Group has been the subject of any investigations, reviews, audits, or inquiries by a Governmental Authority related
to Anti-Bribery Laws or Global Trade Laws, and no investigation, review, audit, or inquiry by any Governmental Authority with respect
to Anti-Bribery Laws or Global Trade Laws is pending or threatened.


 


Section
3.24    Insurance. Schedule 3.24 sets forth an accurate
and complete list of all insurance policies by which any member of the Company Group, or any of its Assets, employees, officers or directors
(or equivalent) or the Business are insured (the “Liability Policies”) and their respective expiration dates. The
list includes for each Liability Policy the type of policy, form of coverage, policy number, name of insurer, term and annual premiums.
The Company has made available to Parent accurate and complete copies of all Liability Policies, in each case, as amended or otherwise
modified and in effect. For each such Liability Policy, all premiums due and payable


 




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thereunder
have been paid in full, and no member of the Company Group is in default with respect to the obligations under any such Liability Policy
or has otherwise failed to comply in all respects with the terms and conditions of any such liability Policy. Schedule 3.24 describes
any self-insurance arrangements affecting any member of the Company Group. Each member of the Company Group maintains and since formation
has maintained insurance with respect to their Assets, employees, officers and directors and the Business, in such amounts and against
such losses and risks as is customarily carried by Persons engaged in the same or similar business and as is required under the terms
of any applicable Real Property Leases or other Contractual Obligations. Except as disclosed on Schedule 3.24, no insurer (a)
has questioned, denied or disputed coverage of any claim pending under any Liability Policy or (b) has threatened to cancel or not to
renew any Liability Policy. Except as disclosed on Schedule 3.24, to the Company Group’s Knowledge, no insurer plans to
materially increase the premiums for, or materially alter the coverage under, any Liability Policy.


 


Section
3.25     No Brokers. No member of the Company Group has any Liability
of any kind to, or is subject to any claim of, any broker, finder or agent in connection with the Contemplated Transactions.


 


Section
3.26    Books and Records.
The books of account, minute books, stock, option record, and other business records of each
member of the Company Group are complete and accurate and have been maintained in accordance with sound business practices and applicable
Legal Requirements. The minute books of each member of the Company Group contain accurate and complete records of all meetings held of,
and corporate action taken by, the stockholders or other holders of Equity Interests, the Company Board and committees of the Company
Board of each member of the Company Group, and no meeting of any such stockholders or other holders of Equity Interests, the Company
Board or committee has been held for which minutes have not been prepared and are not contained in such minute books. At the Closing,
all of such books and records will be in the possession of the Company.


 


Section
3.27    Accredited Investor Status. There are less than thirty
five (35) Effective Time Holders that are not Accredited Investors. Each Effective Time Holders who is not an Accredited Investor, either
alone or with his purchaser representative, has such knowledge and experience in financial and business matters that such Effective Time
Holders is capable of evaluating the merits and risks of owning Parent Class A Common Stock.


 


Section
3.28    Disclaimer of Certain Representations and Warranties.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE III, THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES
OF ANY KIND OR NATURE, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING AS TO THE CONDITION, FUTURE PROSPECTS, FORWARD LOOKING STATEMENTS,
VALUE, OR QUALITY OF THE COMPANY GROUP’S BUSINESS, OR ANY MEMBER OF THE COMPANY GROUP, OR THE ASSETS OF THE COMPANY GROUP OR ANY
PART THEREOF; AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE III, THE COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATION
OR WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY


 




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PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY REPRESENTATION OR WARRANTY ARISING FROM ANY COURSE OF DEALING, USAGE, OR TRADE
PRACTICES.


 


Article
IV

REPRESENTATIONS AND WARRANTIES OF PArent AND MERGER SUB.


 


In
order to induce the Company to enter into and perform this Agreement and to consummate the Contemplated Transactions, Parent represents
and warrants to the Company that the following statements are true, complete and correct as of the date hereof and as of the Closing
Date, except that the accuracy of representations and warranties that by their respective terms speak as of the specified date will be
determined as of such date.


 


Section
4.01    Organization. Each of Parent, Merger Sub and Sister Subsidiary
is duly organized and/or formed, validly existing and in good standing under the laws of Delaware.


 


Section
4.02    Power and Authorization. The execution, delivery and performance
by Parent, Merger Sub and Sister Subsidiary of this Agreement and each Ancillary Agreement to which Parent, Merger Sub and Sister Subsidiary
is, or will be at Closing, a party and the consummation of the Contemplated Transactions by Parent, Merger Sub and Sister Subsidiary
are within the power and authority of Parent, Merger Sub and Sister Subsidiary and have been duly authorized by all necessary action
on the part of Parent, Merger Sub and Sister Subsidiary. This Agreement and each Ancillary Agreement to which Parent, Merger Sub and
Sister Subsidiary is, or will be at Closing, a party (a) have been (or, in the case of Ancillary Agreements to be entered into at the
Closing, will be when executed and delivered) duly executed and delivered by Parent, Merger Sub and Sister Subsidiary and (b) is (or
in the case of Ancillary Agreements to be entered into at the Closing, will be when executed and delivered) a legal, valid and binding
obligation of Parent, Merger Sub and Sister Subsidiary, enforceable against Parent, Merger Sub and Sister Subsidiary in accordance with
its terms.


 


Section
4.03     Merger Sub and Sister Subsidiary. Merger Sub and Sister
Subsidiary were formed solely for the purposes of engaging in the Contemplated Transactions, have engaged in no other business activities
and have conducted their operations only as contemplated by this Agreement.


 


Section
4.04    Authorization of Governmental Authorities. No action by
(including any authorization, consent or approval), or in respect of, or filing with, any Governmental Authority is required for, or
in connection with, the valid and lawful (a) authorization, execution, delivery and performance by Parent, Merger Sub and Sister Subsidiary
of this Agreement and each Ancillary Agreement to which it is, or will be at Closing, a party or (b) consummation of the Contemplated
Transactions by Parent, Merger Sub and Sister Subsidiary.


 


Section
4.05     Noncontravention. Neither the execution, delivery and
performance by Parent, Merger Sub and Sister Subsidiary of this Agreement or any Ancillary Agreement to which it is, or will be at Closing,
a party nor the consummation of the Contemplated Transactions will:


 




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(a)       violate
any provision of any Legal Requirement applicable to Parent, Merger Sub and Sister Subsidiary; or


 


(b)       conflict
with or result in a breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute
a default) under, or result in termination of, or accelerate the performance required by, or result in a right of termination or acceleration
under, or require any action by (including any authorization, consent or approval) or notice to any Person under, any of the terms, conditions
or provisions of (i) any Government Order applicable to or otherwise affecting Parent, Merger Sub and Sister Subsidiary or any of either
of their assets or properties, (ii) any material Contractual Obligation of Parent, Merger Sub and Sister Subsidiary, or (iii) the Organizational
Documents of Parent, Merger Sub and Sister Subsidiary.


 


Section
4.06     No Brokers. Except for Barclays Capital, Inc., none of
Parent, Merger Sub and Sister Subsidiary has any Liability of any kind to any broker, finder or agent with respect to the Contemplated
Transactions.


 


Section
4.07    Litigation. As of the date hereof, there is no Action
pending or, to the knowledge of Parent, threatened against or affecting Parent that could, individually or in the aggregate, be expected
to have a material adverse effect on the Parent, and Parent is not subject to or bound by any order that would prevent or otherwise interfere
with the ability of the Parent to consummate the transactions contemplated by this Agreement, or to otherwise perform its obligations
under this Agreement or any Ancillary Agreement to which the Parent is or will be a party.


 


Section
4.08     Regulatory Reports, SEC Filings and the Sarbanes-Oxley Act.


 


(a)       As
of its filing date (and as of the date of any amendment), each filing filed with or furnished to the SEC by Parent since September 16,
2020 (collectively, together with any exhibits and schedules thereto and other information incorporated therein, and as amended from
time to time, the “Parent SEC Documents”) and filed prior to the date of this Agreement has complied, in all material
respects with the applicable requirements of the New York Stock Exchange, the Securities Act, the Securities Exchange Act and the Sarbanes-Oxley
Act, as the case may be.


 


(b)       As
of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or superseding
filing), each Parent SEC Document filed prior to the date of this Agreement did not, contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which
they were made, not misleading.


 


(c)       Parent
is, and since September 16, 2020 has been, in compliance in all material respects with (i) the applicable provisions of the Sarbanes-Oxley
Act and (ii) the applicable listing and corporate governance rules and regulations of the New York Stock Exchange.


 




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(d)       Parent
and its Subsidiaries have established and maintained since September 16, 2020, and continue and maintain, disclosure controls and procedures
(as defined in Rule 13a-15 under the Securities Exchange Act). Such disclosure controls and procedures are designed to ensure that all
material information relating to Parent, including its consolidated Subsidiaries, is made known to Parent’s principal executive
officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports
required under the Securities Exchange Act are being prepared. Such disclosure controls and procedures are effective in all materials
respects in timely alerting Parent’s principal executive officer and principal financial officer to material information required
to be included in Parent’s periodic and current reports required under the Securities Exchange Act.


 


(e)       Parent
and its Subsidiaries have established and maintained since September 16, 2020, and continue and maintain, a system of internal controls.
Such internal controls are designed to provide reasonable assurance regarding the reliability of Parent’s financial reporting and
the preparation of Parent’s consolidated financial statements for external purposes in accordance with GAAP. Parent disclosed,
based on its most recent evaluation of such internal controls prior to the date of this Agreement, to Parent’s auditors and the
audit committee of the Board of Directors of Parent (x) all significant deficiencies and material weaknesses in the design or operation
of internal controls which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report
financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant
role in internal controls.


 


(f)       Since
September 16, 2020, each of the principal executive officer and principal financial officer of Parent (or each former principal executive
officer and principal financial officer of Parent, as applicable) has made all certifications required by Rule 13a-14 and 15d-14 under
the Securities Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act and any related rules and regulations promulgated by the
SEC and the New York Stock Exchange, and the statements contained in any such certifications are true and complete.


 


Section
4.09    Financial Statements and Financial Matters. The audited consolidated financial statements and unaudited consolidated interim
financial statements of Parent included or incorporated by reference in the Parent SEC Documents present fairly in all material respects,
in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and,
in the case of unaudited interim financial statements, as may be permitted by the SEC for Quarterly Reports on Form 10-Q), the consolidated
financial position of Parent and its Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows
for the periods then ended (subject to normal, recurring and immaterial year-end audit adjustments in the case of any unaudited interim
financial statements). Such consolidated financial statements have been prepared from, and are in accordance with, the books and records
of Parent and its Subsidiaries.


 


Section
4.10    Parent’s Investigation and Non-Reliance. Parent is a highly sophisticated and has, on its own and through its Representatives,
conducted its own comprehensive investigation, due diligence, review, and analysis regarding the Company Group, and the


 




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Contemplated
Transactions and the Ancillary Agreements. Parent is not relying, has not relied, and disclaims all reliance upon any statement, representation,
or warranty (whether oral, written, express, or implied) made by the Company, the Effective Time Holders or any of their Affiliates or
Representatives of any kind whatsoever, except as expressly set forth in Article III. Neither the Effective Time Holders nor the
Company (nor any of their Affiliates or Representatives) is making, directly or indirectly, any representation or warranty with respect
to any estimates, projections, or forecasts involving the Company Group. Parent acknowledges and agrees that there are inherent uncertainties
in attempting to make such estimates, projections, and forecasts and that Parent takes full responsibility for making its own evaluation
of the adequacy and accuracy of any such estimates, projections, or forecasts (including the reasonableness of the assumptions underlying
any such estimates, projections, or forecasts). Parent acknowledges and agrees that, should the Closing occur, Parent is acquiring the
capital stock of the Final Surviving Entity without any representation or warranty as to the merchantability or fitness for any particular
purpose of the Final Surviving Entity’s or its Subsidiaries’ respective assets, the prospects of the business of the Final
Surviving Entity or its Subsidiaries, or the effectiveness or the success of any business operations and on an “as is” and
“where is” basis, except as expressly set forth in Article III. The provisions of this Section 4.10, together
with the remedies provided in Article IX, were specifically bargained-for between Parent and the Company in arriving at the consideration
to be paid under this Agreement. Notwithstanding anything to the contrary in this Section 4.10, Parent and Merger Sub retain all
of their respective rights and remedies with respect to claims for Fraud and nothing herein shall limit or prohibit the rights of Parent
to pursue claims for Fraud or any recoveries under the R&W Insurance Policy.


 


Article
V

COVENANTS OF THE PARTIES


 


Section
5.01     Commercially Reasonable Efforts; Notices and Consents.


 


(a)       Subject
to the terms and conditions of this Agreement, from the date of this Agreement to the Closing, or the earlier termination of this Agreement
pursuant to Article VIII, each of the parties hereto shall use its commercially reasonable efforts to take or cause to be taken
all actions, to file or cause to be filed all documents, to give or cause to be given all notices to Governmental Authorities or other
Persons, to obtain or cause to be obtained all authorizations, consents, waivers, approvals, permits or orders from Governmental Authorities
or other Persons, and to do or cause to be done all other things necessary, proper or advisable, in order to consummate and make effective
the Contemplated Transactions as soon as practicable following the date of this Agreement (including satisfaction, but not waiver, of
the closing conditions set forth in Article VI and Article VII); provided, however, that in no event shall
such efforts be deemed to include (A) selling, licensing or otherwise disposing of, or holding separate and agreeing to sell, license
or otherwise dispose of, any entities, Assets or facilities of the Company or any entity, facility or Asset of Parent or its Affiliates,
(B) terminating, amending or assigning existing relationships and Contractual Obligations or (C) entering into any new Contractual Obligations.
The parties shall cooperate in good faith with the applicable Governmental Authorities in connection with such filings and submissions
and shall promptly comply with any


 




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additional
requests for information, including requests for production of documents and production of witnesses for interviews or depositions by
any Governmental Authorities.


 


(b)       Subject
to the terms of Section 5.01(a), in the event any Action by any Governmental Authority or other Person is commenced which questions
the validity or legality of the Contemplated Transactions hereby or seeks damages in connection therewith, the parties agree to cooperate
and use commercially reasonable efforts to defend against such Action and, if a Government Order is issued in any such Action, to use
commercially reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment
to the consummation of the transactions contemplated hereby; provided, however, that (i) the Company may not settle any
stockholder lawsuits related to the foregoing without the prior written consent of Parent and (ii) all limitations set out in the proviso
at the end of Section 5.01(a) apply hereto.


 


Section
5.02 Operation of the Business.


 


(a)       Conduct
of the Business Generally. From the date of this Agreement until the Closing, or the earlier termination of this Agreement in accordance
with Article VIII, without the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed),
and except to the extent described on Schedule 5.02(a), the Company Group, and each member of the Company Group, shall:


 


(i)       conduct
the Business only in the Ordinary Course of Business;


 


(ii)       maintain
in effect the insurance coverage described on Schedule 3.24 (or equivalent replacement coverage); and


 


(iii)       use
commercially reasonable efforts to preserve intact its business organization, assets and technology, and relationships with third parties
(including lessors, licensors, suppliers, distributors and customers) and employees.


 


(b)       Specific
Prohibitions. Without limiting the generality or effect of Section 5.02(a), from the date of this Agreement until the Closing,
or the earlier termination of this Agreement in accordance with Article VIII, without the prior written consent of Parent (which
shall not be unreasonably withheld or delayed), and (x) except to the extent described on Schedule 5.02(a), (y) with respect to
any Employee RSU or Bonus Award to the extent such action (or omission) results in an increase of more than 110% in the amounts payable
to the holders of such Employee RSUs or Bonus Awards as determined as of the date hereof pursuant to each such holder’s ownership
as set forth in Schedules 2.02(j) and 2.02(k) or (z) in order to undertake a summary approval procedure to cause the Irish
Subsidiary’s share premium account to be set against its accumulated losses, each member of the Company Group shall not take any
of the following actions:


 


(i)       amend
its Organizational Documents, effect any split, combination, reclassification or similar action with respect to its capital stock or
other Equity Interests or adopt or carry out any plan of complete or partial liquidation or dissolution;


 




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(ii)       issue,
sell, grant or otherwise dispose of or suffer to exist any Encumbrance with respect to any of its Equity Interests or other securities,
or amend any term of any of its outstanding Equity Interests or other securities;


 


(iii)       (A)
make any declaration or payment of, or set aside funds for, any dividend or other distribution with respect to any of its capital stock
or other Equity Interests; or (B) repurchase, redeem, or otherwise acquire, split, combine, reclassify or cancel any of its capital stock
or other Equity Interests, or otherwise change its capital structure;


 


(iv)       become
liable in respect of any Guarantee or incur, assume or otherwise become liable in respect of any Indebtedness;


 


(v)       (A)
merge or consolidate with any Person; (B) acquire any material Assets, except for acquisitions of Assets or equipment in the Ordinary
Course of Business; (C) make any loan, advance or capital contribution to, acquire any Equity Interests in, or otherwise make any investment
in, or forgive any loan to, any Person (other than loans and advances to employees in the Ordinary Course of Business); or (D) file a
petition in bankruptcy under any provisions of federal or state bankruptcy Legal Requirement or consent to the filing of any bankruptcy
petition under any similar Legal Requirement;


 


(vi)       create
any Subsidiary;


 


(vii)       purchase
or acquire, directly or indirectly (including by merger, consolidation or acquisition of stock or assets or any other business combination)
any corporation, partnership, other business organization or division thereof or any other business;


 


(viii)       permit
any of its material Assets to become subject to or suffer to exist in respect of any of its material Assets any Encumbrance (other than
a Permitted Encumbrance) or sell, lease, pledge, abandon, assign, license or otherwise dispose of any of its material Assets, other than
sales of Assets in the Ordinary Course of Business not in excess of $150,000 individually or $300,000 in the aggregate;


 


(ix)       repay,
prepay or otherwise discharge or satisfy any Indebtedness or other material Liabilities, other than in the Ordinary Course of Business,
or waive, cancel or assign any claims or rights of substantial value other than in the Ordinary Course of Business;


 


(x)       make
any capital expenditures that are in the aggregate in excess of $300,000 (other than capital expenditures expressly contemplated by the
capital expenditure budget attached as Schedule 5.02(b)(viii));


 


(xi)       adopt,
terminate, amend or increase any payments or benefits under any Company Group Plan or increase the Compensation payable or paid, whether
conditionally or otherwise, to any employee, officer, director, manager or independent contractor of any member of the Company Group
(other than (A) any increase adopted in the Ordinary Course of Business in respect of the Compensation of any non-officer employee whose
annual base Compensation does not exceed $300,000 after giving effect to such increase or (B) any increase in benefits or


 




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Compensation
required by Legal Requirements or required pursuant to the terms as in effect as of the date of this Agreement of an existing Company
Group Plan so long as such Company Group Plan or agreement has been disclosed as of the date of this Agreement to Parent on Schedule
3.16(a));


 


(xii)       hire,
engage or terminate (other than for cause) the employment or engagement of any director, manager, officer, employee or independent contractor
with annual base compensation in excess of $300,000;


 


(xiii)       make
any material change in its methods of accounting or accounting practices (including with respect to reserves) or its pricing policies,
payment or credit practices, fail to pay any creditor any material amount owed to such creditor when due or grant any extensions of credit
other than in the Ordinary Course of Business;


 


(xiv)       make
any material change in its policies and practices regarding accounts receivable or accounts payable or fail to manage working capital
in accordance with past practices;


 


(xv)       settle,
agree to settle, pay, discharge, satisfy, waive or otherwise compromise any pending or threatened Actions;


 


(xvi)       commence
any Action other than for the routine collection of invoice or as expressly contemplated by this Agreement;


 


(xvii)       change
or revoke any material Tax election or make any material Tax election (other than elections made in the Ordinary Course of Business),
change any annual Tax accounting period, adopt or change any method of Tax accounting in respect of material Taxes, file any material
amended Tax Return or filed any material Tax Return in a manner inconsistent with past practice, enter into any Contractual Obligation
(other than any commercial agreements the primary purpose of which does not relate to Taxes) in respect of Taxes with any Governmental
Authority, including any closing agreement, settle any Tax Action, surrender any right to claim a material Tax refund, offset or other
reduction in Tax Liability, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment outside
the Ordinary Course of Business;


 


(xviii)       open
any Facility or enter into any new line of business or close any Facility or discontinue any line of business or any material business
operations;


 


(xix)       enter
into, adopt, cancel, terminate, renew, amend grant a waiver under or otherwise modify in any material respect (including by accelerating
material rights or benefits under) any of the Material Company Contracts;


 


(xx)       enter
into any transaction with any stockholder, director, officer or employee of any member of the Company Group;


 




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(xxi)       negotiate,
enter into, amend, extend, or terminate any collective bargaining agreement or other Contractual Obligation with a Union;


 


(xxii)       write
up or write down any of its material Assets;


 


(xxiii)       open
any new bank or deposit accounts (or materially change any existing arrangements with respect to any existing bank or deposit accounts)
or grant any new powers of attorney;


 


(xxiv)       license
or otherwise dispose of the rights to use any material patent, trademark or other Intellectual Property Rights or disclose material trade
secrets to a third party; or


 


(xxv)       authorize,
resolve, commit, agree, enter into any Contractual Obligation or otherwise become obligated to do any of the things referred to elsewhere
in this Section 5.02(b).


 


Section
5.03Access to Premises and Information. From the date of this
Agreement until the Closing, or the earlier termination of this Agreement in accordance with Article VIII, the Company shall permit
Parent and its Representatives to have full access (at reasonable times and upon reasonable notice) to all Representatives of the Company
Group and to all premises, properties, books, records (including Tax records), contracts, financial and operating data and other information
and documents of, or pertaining to, the Company Group, the Assets or the Business. Notwithstanding the foregoing, (a) Parent and its
Representatives shall under no circumstance contact any employee, contractor, agent, supplier, or customer of the Company Group without
the advance written consent of the Company other than in the Ordinary Course of Business and not in connection with this Agreement or
the consummation of the Contemplated Transactions; (b) any due diligence shall be conducted in a manner as to not unreasonably interfere
with the operations and employees of the Company Group; and (c) no member of the Company Group shall be obligated to provide any documentation
or communication that is considered by the Company Group to be subject to the attorney-client privilege or any work product doctrine
(provided that the Company group shall use its commercially reasonable efforts to allow for such access or disclosure (or as much of
its as possible) in a manner that does not result in a loss of attorney-client privilege or protections).


 


Section
5.04No Solicitation. From the date of this Agreement until
the Closing, or the earlier termination of this Agreement in accordance with Article VIII, the Company shall not (and the Company
shall not cause or permit its Affiliates or any of its or its Affiliates’ Representatives) directly or indirectly: (a) solicit,
initiate, seek, facilitate, support, induce or encourage the making, submission or announcement of any inquiry, expression of interest,
proposal or offer from any Person relating to or could reasonably be expected to lead to, or enter into or consummate any transaction
relating to, the acquisition of any Equity Interests in any member of the Company Group or any merger, recapitalization, share exchange,
sale of material Assets or any similar transaction or any other alternative to the Contemplated Transactions or (b) enter into, participate
in, maintain or continue any communications (except solely to provide written notice as to the


 




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existence
of these provisions) or discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or
facilitate in any other manner, any effort or attempt by any Person to do or seek any of the foregoing. None of the holders of the Company
Capital Stock shall vote their shares of Company Capital Stock in favor of any such acquisition structured as a merger, consolidation,
share exchange or otherwise. The Company shall notify Parent promptly if any Person makes any proposal, offer, inquiry or contact with
respect to any of the foregoing (whether solicited or unsolicited).


 


Section
5.05     Expenses. Each party will pay its own respective financial
advisory, legal, accounting and other expenses incurred by it or for its benefit in connection with the preparation and execution of
this Agreement and the Ancillary Agreements, the compliance herewith and therewith and the Contemplated Transactions.


 


Section
5.06     Confidentiality. Parent and the Company agree that all
information provided by or on behalf of Parent or the Company and their Affiliates and Representatives under this Agreement or in connection
with the Contemplated Transactions shall be treated in accordance with the Confidentiality Agreement, dated as of June 1, 2021, between
Parent and the Company (the “Confidentiality Agreement”).


 


Section
5.07     Publicity. No public announcement or disclosure (including
any general announcement to employees, customers or suppliers) will be made by any party with respect to the subject matter of this Agreement
or the Contemplated Transactions without the prior written consent of Parent, the Company and the Securityholder Representative; provided
that the provisions of this Section 5.07 shall not prohibit (a) any disclosure required by any applicable Legal Requirements
(in which case the disclosing party will provide the other parties with the opportunity to review and comment in advance of such disclosure)
or (b) any disclosure made in connection with the enforcement of any right or remedy relating to this Agreement or any Ancillary Agreement
or the Contemplated Transactions.


 


Section
5.08      Pre-Closing Deliveries. On the date hereof the Company
is delivering the following to Parent:


 


(a)       a
completed accredited investor questionnaire in the form of Exhibit J (the “Accredited Investor Questionnaire”)
in respect of all Effective Time Holders who are Accredited Investors;


 


(b)       an
executed Subscription Agreement delivered by the Accredited Effective Time Holders;


 


(c)       evidence
of the cancellation of the Contractual Obligations listed on Schedule 5.08(e), effective as of the Closing Date;


 


(d)       resignations,
effective as of the Closing, of each officer and director of each member of the Company Group; and


 


(e)       the
audited financial statements for the Company’s 2020 fiscal year.


 




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Section
5.09      Indemnification of Directors and Officers.


 


(a)       From
and after the Closing Date, Parent shall cause the Final Surviving Entity to fulfill and honor in all respects the obligations of the
Company pursuant to any provisions regarding indemnification of directors and officers, advancement of expenses to directors and officers
and exculpation from liability under the certificate of incorporation and bylaws of the Company as in effect on the date of this Agreement
and pursuant to any indemnity agreements between the Company and such Person as in effect on the date of this Agreement that are set
forth on Schedule 3.18(a)(xviii) (the Persons so entitled pursuant to such provisions, and all other current and former directors
and officers of the Company, being referred to collectively as the “D&O Indemnified Parties”). Parent shall cause
the Organizational Documents of the Final Surviving Entity to contain provisions with respect to indemnification, advancement of expenses
and exculpation from liability that are substantially similar to set forth in the Company’s certificate of incorporation and bylaws
on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after
the Closing Date in any manner that could adversely affect the rights thereunder of any D&O Indemnified Party.


 


(b)       The
Company shall obtain at the Closing a prepaid (or “tail”) directors’ and officers’ liability insurance policy,
which cost and expense shall be split 50/50 between Parent and the Company, in respect of events occurring prior to the Effective Time
(the “D&O Insurance”) for a period of six (6) years from the Closing Date, on terms with respect to such coverage
and amounts no less favorable than the Company’s existing policy or, if insurance coverage that is no less favorable is unavailable,
the best available coverage; provided, however, that Parent shall not be required to pay an aggregate amount for the D&O
Insurance in excess of three hundred percent (300%) of the last annual premium paid by the Company prior to the date of this Agreement.


 


(c)       This
Section 5.09 shall survive the consummation of the Contemplated Transaction and the Closing, is intended to benefit and may be
enforced by the Company, Parent, and the D&O Indemnified Parties, and shall be binding on all successors and assigns of Parent and
the Company.


 


Section
5.10Data Room Record. Prior to the Closing, the Company shall
deliver to Parent a DVD ROM disc (or similar media) containing a digital copy of all the materials included in the Data Room.


 


Section
5.11     Stockholder Approval.


 


(a)       Promptly
following the execution and delivery of this Agreement (but no later than forty eight (48) hours thereafter), the Company shall, in accordance
with its Organizational Documents and the applicable requirements of the DGCL, use reasonable best efforts to obtain the written consent
of the holders of Company Capital Stock of the Company evidencing the approval of (i) holders of seventy percent (70%) of the outstanding
shares of Company Voting Common Stock and the Company Preferred Stock (voting on an as converted to Company Common Stock basis) voting
together as a single class, (ii) holders of fifty-five percent (55%) of the Series A Preferred Stock and Series B Preferred Stock voting
together as a single


 




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class,
and (iii) a majority of the outstanding shares of the Series A Preferred Stock voting as a single class (the “Written Consent”)
and shall promptly deliver a copy of the Written Consent following its receipt by the Company to Parent. Approval of this Agreement by
the holders of Company Capital Stock of the Company shall not restrict the ability of the Company Board thereafter to terminate or amend
this Agreement; provided, that such termination or amendment (i) is made in accordance with the terms of this Agreement and (ii)
not prohibited under Section 251(d) of the DGCL.


 


(b)       Promptly
following the receipt of the Written Consent, but no later than ten (10) Business Days thereafter, the Company shall prepare and mail
a notice (the “Stockholder Notice”) to every stockholder of the Company that did not execute the Written Consent.
The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Merger is advisable
in accordance with Section 251(b) of the DGCL and in the best interests of the stockholders of the Company and unanimously approved and
adopted this Agreement, the Merger and the other transactions contemplated hereby, (ii) provide the holders of Company Capital Stock
of the Company to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this
Agreement, the Merger and the other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the bylaws of
the Company and (iii) notify such holders of Company Capital Stock of the Company of their dissent and appraisal rights pursuant to Section
262 of the DGCL. The Stockholder Notice shall include therewith a copy of Section 262 of the DGCL and all such other information as Parent
shall reasonably request, and shall be sufficient in form and substance to start the twenty (20) day period during which a holder of
Company Capital Stock must demand appraisal of such holder’s Company Capital Stock as contemplated by Section 262(d)(2) of the
DGCL. All materials submitted to the holders of Company Capital Stock in accordance with this Section 5.11(b) shall be subject
to Parent’s advance review and reasonable approval.


 


Section
5.12     Registration Procedures and Expenses.


 


(a)       Parent
shall use its reasonable best efforts to file with the SEC within ten (10) Business Days following the date which Parent qualifies as
a well-known seasoned issuer (as such term is defined in Rule 405 under the 1933 Act) a resale registration statement on Form S-3ASR
permitting the public resale of all shares of Parent Class A Common Stock issued to Effective Time Holders following the Closing (the
“Registrable Securities”) on a delayed or continuous basis pursuant to Rule 415 of the 1933 Act in accordance with
the requirements of the 1933 Act and the rules and regulations of the SEC thereunder. If Parent has not qualified as a well-known seasoned
issuer (as such term is defined in Rule 405 under the 1933 Act) on or prior to October 1, 2021, on or before October 15, 2021, Parent
shall file with the SEC a resale registration statement on Form S-3 (such registration statement on Form S-3ASR or Form S-3, the “Resale
Registration Statement”) permitting the public resale of all Registrable Securities and shall use its reasonable best efforts
to cause such Resale Registration Statement to be declared effective by the SEC as promptly as is practical after filing. Parent shall
use its reasonable best efforts to maintain the effectiveness of the Resale Registration Statement until the earlier of such time as
(a) all Registrable Securities have been sold pursuant thereto and (b) all Registrable Securities may be sold pursuant to Rule 144 under
the 1933 Act and any restrictive legend on such Registrable


 




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Securities
has been removed or will be removed upon resale. Parent shall pay the expenses incurred by it in complying with its obligations under
this Section 5.12, including, without limitation, all registration and filing fees, exchange listing fees, fees and expenses of
counsel for Parent, and fees and expenses of accountants for Parent. Notwithstanding anything to the contrary herein, (x) Parent shall
promptly notify each holder of Registrable Securities if (i) any stop order is issued or threatened by the SEC or any state securities
commission in respect of the Resale Registration Statement or (ii) Parent believes, in its good faith judgment, that the Resale Registration
Statement or any prospectus issued pursuant to such registration statement may contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading; and (y) in such an event, each holder of Registrable Securities acknowledges that public sales
of Registrable Securities may not be made pursuant to the Resale Registration Statement. Parent Class A Common Stock held by Effective
Time Holders of Company Capital Stock will not be subject to any lock-up or similar restriction on transfers of such stock imposed by
applicable securities laws.


 


(b)       The
Resale Registration Statement (including the documents incorporated therein by reference) will comply as to form in all material respects
with all applicable requirements of the Securities Act and the Exchange Act and will not contain any untrue statement of a material fact
or an omission to state a material fact required to be stated in a Resale Registration Statement or prospectus, or necessary to make
the statements in a Resale Registration Statement or prospectus, in light of the circumstances under which they were made, not misleading.


 


(c)       As
long as any Effective Time Holders shall own Registrable Securities, Parent, at all times while it shall be a reporting company under
the Exchange Act, covenants to use its reasonable best efforts to file timely (or obtain extensions in respect thereof and file within
the applicable grace period) all reports required to be filed by Parent after the date hereof pursuant to Sections 13(a) or 15(d) of
the Exchange Act and to promptly furnish the Effective Time Holders with true and complete copies of all such filings; provided that
any documents publicly filed or furnished with the SEC pursuant to the Electronic Data Gathering, Analysis and Retrieval System shall
be deemed to have been furnished or delivered to the Effective Time Holders pursuant to this Section 5.12(c). Following such time
as Rule 144 is available to the Effective Time Holders, Parent further covenants that it shall take such further action as any Effective
Time Holder may reasonably request, all to the extent required from time to time to enable such Effective Time Holder to sell Registrable
Securities held by such Effective Time Holder without registration under the Securities Act within the limitation of the exemptions provided
by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing
any legal opinions. Notwithstanding anything to the contrary in this Agreement, Parent shall not have any obligation to prepare any prospectus
supplement, participate in any due diligence, execute any agreements or certificates or deliver legal opinions (other than customary
de-legending certificates and opinions or any customary Exhibit 5 opinion required in connection with the initial filing of the Resale
Registration Statement) or obtain comfort letters in connection with any sales of the Registrable Securities under the Resale Registration
Statement.


 




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Section
5.13     Delivery of Certificates of Parent;
Private Placement. Parent represents it intends to issue shares of Parent Class A Common Stock hereunder in reliance on the
exemption from the registration requirements of the 1933 Act provided by Rule 506 of Regulation D under the 1933 Act, or Section 4(a)(2)
of the 1933 Act, and in reliance on exemptions from the registration or qualification requirements of state securities or “blue
sky” laws. Notwithstanding any provision of this Agreement or any other document to the contrary, Parent shall not be required
to issue any shares of Parent Class A Common Stock to any Effective Time Holder, and no Effective Time Holder shall be entitled to receive
any shares of Parent Class A Common Stock, if Parent shall not have received at least one (1) Business Days prior to Closing a completed
Accredited Investor Questionnaire appended to the Letter of Transmittal in respect of such Effective Time Holder confirming that such
Effective Time Holder is an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the 1933 Act. If
Parent or the Paying Agent have not received at least one (1) Business Days prior to Closing a completed Accredited Investor Questionnaire
in respect of an Effective Time Holder confirming that such Effective Time Holder is an “accredited investor” within the
meaning of Rule 501(a) of Regulation D under the 1933 Act, then such Effective Time Holder shall be entitled to receive the portion of
the Merger Consideration attributable to the shares of Company Capital Stock or capital stock underlying the In-The-Money Options or
In-The-Money Warrants held by such Effective Time Holder that would have been paid in Parent Class A Common Stock solely in cash in lieu
of such Parent Class A Common Stock.


 


Section
5.14      Employee Benefit Matters; Termination of Employee Plans.


 


(a)       If
requested by Parent in writing within five (5) Business Days prior to the Closing Date, the Company shall take all actions necessary
to terminate any and all Company Group Plans identified by Parent in such written request prior to the Closing Date; provided,
however, that the foregoing termination shall be conditioned and effective upon the consummation of the Contemplated Transactions
at Closing.


 


(b)       For
a period of one (1) year following the Closing Date, Parent agrees that each employee of the Company who continues employment with Parent,
the Final Surviving Entity or any of their respective Subsidiaries after the Closing Date (a “Continuing Employee”)
shall be provided, for so long as each such employee remains employed during such one (1) year period, with (i) base salary or hourly
wage rate, as applicable, that is equal or greater than the base salary or hourly wage rate in effect immediately prior to the Closing,
(ii) target annual (or more frequent) cash incentive compensation (excluding change-in-control, retention, non-qualified deferred compensation
and equity or equity-based incentive opportunities) that are no less favorable in the aggregate than those in effect immediately prior
to the Closing, and (iii) no requirement to relocate their primary place of employment (without regard to any permitted work-from-home
arrangement related to COVID-19) and such other terms and conditions that Parent approves in its sole discretion. Nothing in this Agreement
(i) shall require Parent, the Final Surviving Entity or any of their Subsidiaries to continue to employ any particular Company employee
following the Closing Date, or (ii) shall be construed to prohibit Parent, the Final Surviving Entity or any of their Subsidiaries from
amending or terminating any Employee Plan.


 




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(c)       With
respect to each health or welfare benefit plan maintained by Parent, the Final Surviving Entity or the relevant Subsidiary for the benefit
of any Continuing Employees that Continuing Employees become newly eligible to participate in following the Closing Date, subject to
any required approval of the applicable insurance provider, if any, Parent shall use commercially reasonable efforts to (i) cause to
be waived any eligibility waiting periods, any evidence of insurability requirements and the application of any pre-existing condition
limitations under such plan, and (ii) cause each Continuing Employee to be given credit under such plan for all amounts paid by such
Continuing Employee under any similar Company Employee Plan for the plan year that includes the Closing Date for purposes of applying
deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions
of the applicable plan maintained by Parent, the Final Surviving Entity or the relevant Subsidiary, as applicable, for the plan year
in which the Closing Date occurs.


 


(d)       Nothing
contained herein, express or implied, (i) is intended to confer upon any Continuing Employee any right to employment, continued employment
for any period or continued receipt of any specific employee benefit or other term or condition or employment, (ii) shall constitute
an amendment to, waiver, creation, establishment of or any other modification of any Employee Plan or any other compensation or benefit
plan, policy, program, practice, Contractual Obligation or other arrangement of Parent or any of its Subsidiaries, (iii) shall be construed
to prohibit Parent, the Company or any of their Subsidiaries from amending or terminating any Employee Plan at any time, (iv) shall give
the Representative the power or right to enforce this Section 5.14 or (v) shall create any third party beneficiary or other rights
in favor of any Continuing Employees or other Persons.


 


Section
5.15     Section 280G. If the execution of this Agreement or the
consummation of the Contemplated Transactions contemplated hereby could reasonably entitle any “disqualified individual”
to a “parachute payment” (as each such term is defined in Code Section 280G), then, prior to the Closing, the Company shall
use best efforts to (a) obtain a waiver in a form reasonably acceptable to Parent from each such disqualified individual (collectively,
the “Waivers”) of his or her right to receive any payment that could constitute an excess parachute payment under Code Section
280G (collectively, the “Waived Payments”) and (b) submit the Waived Payments to a stockholder vote consistent with the requirements
of Code Section 280G (the “280G Stockholder Vote”). At least five (5) Business Days prior to obtaining the Waivers,
the Company shall provide drafts of the Waivers and all 280G Stockholder Vote materials to Parent and its counsel for its review and
comment and shall consider such comments in good faith. Prior to the Closing, the Company shall deliver to Parent and its counsel evidence
that an effective 280G Stockholder Vote was solicited and that either (x) the requisite number of stockholder votes was obtained and
the Waived Payments shall be made or (y) the requisite number of stockholder votes was not obtained and no Waived Payments shall be made.
To the extent that any payment provided for pursuant to this Agreement is not made as a result of compliance with the 280G Stockholder
Vote provisions of this Section 5.15, such nonpayment shall not be considered, directly or indirectly, a breach of this Agreement.


 


Section
5.16      Notification. From the date hereof until the Closing
Date, the Company, on the one hand, and Parent, Merger Sub and Sister Subsidiary, on the other hand, shall give prompt


 




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written
notice to the other parties of the occurrence, or failure to occur, of any event, which occurrence or failure to occur would be reasonably
likely to cause (a) any representation or warranty of such party that is contained in this Agreement or any Ancillary Agreement to be
untrue or inaccurate in any material respect as if such representation and warranty were made at such time or (b) such party to fail
to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by such Person under this Agreement or
any Ancillary Agreement.


 


Section
5.17      Minimum Aggregate Amount of Stock Consideration.
Notwithstanding anything herein to the contrary, in the event that a payment to the Effective Time Holders pursuant to this Agreement
(including any release of all or a portion of the Escrow Fund and any Earn-Out Payment made to the Effective Time Holders) would result
in, as of the applicable date of payment, (i) the aggregate value of the Stock Consideration plus any Earn-Out Payments paid in shares
of Parent Class A Common Stock, in each case that are paid to the holders of Company Capital Stock in the Merger (the “Aggregate
Stock Consideration”), being less than (ii) 40% of the sum of the Merger Consideration, the Additional Merger Consideration
and any Earn-Out Payments, in each case that are paid to the holders of Company Capital Stock (the “Aggregate Consideration”),
Parent will substitute additional shares of Parent’s Class A Common Stock for cash such that after the payments pursuant to this
Agreement are made, the Aggregate Stock Consideration equals 40% of the Aggregate Consideration (or as close to 40% as possible without
going below 40%). To the extent necessary to effect the previous sentence, any amount held in escrow may be released to Parent rather
than the applicable Effective Time Holders, with Parent then promptly issuing shares of Parent Class A Common Stock to the applicable
Effective Time Holders.


 


Section
5.18      Irish Subsidiary Cash. The Company shall, and
shall cause the Irish Subsidiary to, cooperate and liaise with Parent and its advisers in implementing the most efficient manner in which
the Irish Subsidiary can effect a summary approval procedure to reduce its capital (but excluding any action that would result in the
Irish Subsidiary becoming an unlimited liability company), and the Company shall cooperate and take into consideration Parent’s
and/or its advisers’ reasonable advice in how to effect such summary approval procedure, including the terms on which it is implemented
and allowing Parent’s advisers the opportunity to review and make reasonable comment on the forms of documents that are used in
connection therewith.


 


Section
5.19      Work Authorization. [***]


 


Section
5.20      Further Assurances. From time to time following
the Closing, and subject to the terms and conditions of this Agreement, each of the parties shall, and shall cause their respective Affiliates
to, execute, acknowledge and deliver such conveyances, notices, assumptions, releases, consents, documents and other instruments and
papers, and perform such further acts as may be reasonably required or desirable to carry out the provisions hereof and the Contemplated
Transactions, including obtaining any Permits, consents, authorizations, approvals of, or effecting the notification of or filing with,
each Person, whether private or governmental, whose consent or approval is required in order to permit the consummation of, and to give
full effect to, the Contemplated Transactions. Between the date hereof and the Closing Date, the Company shall, and shall cause its directors,
officers, employees and representatives to, cooperate with and provide reasonable assistance to Parent in order to provide for the orderly
transition of ownership and


 




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operation
of the Company and its Business to Parent, the transfer of the knowledge of operating the Business to Parent, and to place Parent in
the position of being able to operate the Company and the Business on the Closing Date.


 


Article
VI

CONDITIONS TO THE OBLIGATIONS

OF Parent AT THE CLOSING.


 


The
obligations of Parent to consummate the Contemplated Transactions is subject to the fulfillment, or, to the extent permitted by law,
waiver by Parent, of each of the following conditions:


 


Section
6.01     Representations and Warranties. The representations and
warranties of Company contained in Article III of this Agreement (other than the Company Fundamental Representations) shall be
true and correct as of the Closing Date as if made on and as of the Closing Date (or, in the case of representations and warranties that
are made as of a specific date, as of such date), except where the failure of such representations and warranties to be true and correct
(without giving effect to any limitation or qualification as to “materiality”, “Material Adverse Effect” and
words of similar import set forth herein) would not have, individually or in the aggregate, a Material Adverse Effect. The Company Fundamental
Representations shall be true and correct in all respects (other than de minimis inaccuracies contained in Section 3.05) as of
the Closing Date as if made on and as of the Closing Date. Parent shall bear the burden of proof regarding any failure of the condition
set forth in this Section 6.01.


 


Section
6.02     Performance. The Company will have performed and complied
with in all material respects, with all agreements, obligations and covenants contained in this Agreement that are required to be performed
or complied with by them at or prior to the Closing.


 


Section
6.03      Delivery of Documents. The Company will have delivered
(i) the Escrow Agreement, executed by Securityholder Representative and the Escrow Agent; (ii) the Paying Agent Agreement, executed by
Securityholder Representative, (iii) the Key Employee Employment Agreement, effective as of the Closing Date, and executed by the Company
and Ken Cahill; (iv) the Restrictive Covenant Agreements executed by the Key Employees and effective as of the Closing Date; (v) the
Option Cancellation Agreements executed by any Cancellation Holder who holds In-The-Money Options, each of which is effective as of the
Closing Date; and (vi) the Warrant Cancellation Agreements executed by the holders of In-The-Money Warrants, each of which is effective
as of the Closing Date.


 


Section
6.04      Delivery of Closing Certificates. The Company shall have
delivered to Parent the following.


 


(a)        Secretary
Certificate: A certificate in the form of Exhibit K, dated as of the Closing Date, signed by the Secretary of the Company
certifying as to (i) the names and incumbency of each of the officers of the Company executing this Agreement or any Ancillary Agreement,
(ii) the Organizational Documents of the Company, (iii) all resolutions adopted by the Company Board in connection with this Agreement
and the Contemplated Transactions and (iv)


 




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all
resolutions adopted by the stockholders of the Company in connection with this Agreement and the Contemplated Transactions.


 


(b)       Bring-Down
Certificate: A certificate in the form of Exhibit L, dated as of the Closing Date, signed by a duly authorized officer of
the Company certifying as to the conditions set forth in Section 6.01 and Section 6.02;


 


(c)       FIRPTA
Certificate: A certificate (in form and substance reasonably satisfactory to Parent) pursuant to Treasury Regulations Section 1.1445-2(c)(3),
stating that the Company is not and has not been a U.S. real property holding corporation (as defined in Section 897(c)(2) of the Code)
during the applicable period specified in Section 897(c) of the Code, and a duly executed notice of such certification to the IRS in
accordance with Treasury Regulations Section 1.897-2(h)(2); and


 


(d)       Good
Standing Certificates. A certificate of good standing from the Secretary of State of Delaware (which shall be dated no earlier than
three (3) Business Days prior to the Closing Date).


 


Section
6.05      Qualifications. No provision of any applicable Legal Requirement
and no Government Order will prohibit the consummation of any of the Contemplated Transactions.


 


Section
6.06     Absence of Litigation. No Action will be pending or threatened
which seeks a Government Order, nor will there be any Government Order in effect, (a) which would prevent consummation of any of the
Contemplated Transactions, or (b) which would result in any of the Contemplated Transactions being rescinded following consummation.


 


Section
6.07      No Material
Adverse Change. There shall not have
occurred a Material Adverse Effect after the date of this Agreement that is continuing.


 


Section
6.08      Written
Consent. The Company shall have delivered the Written Consent.


 


Section
6.09     CEO Condition. Parent shall have received notice from the Securityholders Representative confirming that the condition
set forth in Schedule 6.09 has been satisfied.


 


Article
VII

CONDITIONS TO THE COMPANY’S OBLIGATIONS AT THE CLOSING.


 


The
obligations of the Company to consummate the Contemplated Transactions is subject to the fulfillment, or, to the extent permitted by
law, waiver by the Company of each of the following conditions:


 


Section
7.01      Representations and Warranties. The representations and
warranties of Parent contained in this Agreement (a) that are not qualified by materiality will be true and correct in all material respects
both when made and at the Closing with the same force and effect as if made as of the Closing Date and (b) that are qualified by materiality
will be true and correct in all respects both when made and as at the Closing with the same force and effect as if made as of the


 




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Closing
Date, in each case, other than representations and warranties that expressly speak only as of a specific date or time, which will be
true and correct (or true and correct in all material respects, as applicable) as of such specified date or time.


 


Section
7.02      Performance. Parent will have performed and complied with,
in all material respects, all agreements, obligations and covenants contained in this Agreement that are required to be performed or
complied with by Parent at or prior to the Closing.


 


Section
7.03     Bring-Down Certificate. Parent will have delivered to
the Company a certificate in the form of Exhibit M dated as of the Closing Date and signed by a duly authorized representative
of Parent certifying as to the conditions set forth in Sections 7.01, 7.02, 7.04 and 7.05.


 


Section
7.04     Qualifications. No provision of any applicable Legal Requirement
and no Government Order will prohibit the consummation of any of the Contemplated Transactions.


 


Section
7.05      Absence of Litigation. No Action will be pending or threatened
which seeks a Government Order, nor will there be any Government Order in effect, (a) which would prevent consummation of any of the
Contemplated Transactions or (b) which would result in any of the Contemplated Transactions being rescinded following consummation.


 


Section
7.06      Delivery of Documents. Parent will have delivered to the
Company (i) the executed Escrow Agreement, executed by Parent; (ii) the Paying Agent Agreement, executed by Parent and the Paying Agent
and (iii) executed Subscription Agreements for each Effective Time Holder.


 


Section
7.07     R&W Policy. Parent shall have bound the R&W Insurance Policy and delivered a copy of the binder agreement for
the R&W Insurance Policy to the Company.


 


Article
VIII

TERMINATION


 


Section
8.01      Termination of Agreement. This Agreement may be terminated
and the Contemplated Transactions may be abandoned at any time prior to the Closing:


 


(a)       by
mutual written consent of the Company and Parent;


 


(b)       by
either Parent or the Company if a final nonappealable Government Order permanently enjoining or otherwise prohibiting the Contemplated
Transactions has been issued by a Governmental Authority of competent jurisdiction;


 


(c)       by
either Parent or the Company if the Closing has not occurred on or before 5:00 p.m., Eastern time, on October 31, 2021, which date may
be extended from time to time by mutual written consent of Parent and the Company (such date, as so extended from time to time, the “Termination
Date”); provided, that the right to terminate this Agreement under this Section 8.01(c) shall not be available
to Parent if the failure of Parent to fulfill or breach by Parent of any


 




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obligation
under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date and shall not
be available to the Company if the failure of the Company to fulfill or breach by the Company of any obligation under this Agreement
has been the cause of, or resulted in, the failure of the Closing to occur on or before such date and time;


 


(d)       by
the Company if (i) any of the representations and warranties of Parent contained in this Agreement fail to be true and correct such that
the condition set forth in Section 7.01 would not be satisfied, or (ii) Parent shall have breached or failed to comply with any
of its obligations under this Agreement such that the condition set forth in Section 7.02 would not be satisfied (in either case,
other than as a result of a material breach by the Company of any of its obligations under this Agreement) and such failure or breach
with respect to any such representation, warranty or obligation cannot be cured or, if curable, shall continue unremedied for a period
of twenty (20) days after Parent has received written notice from the Company of the occurrence of such failure or breach (provided that
in no event shall such twenty (20) day period extend beyond the Termination Date);


 


(e)       by
Parent if (i) any of the representations and warranties of the Company contained in this Agreement fail to be true and correct such that
the condition set forth in Section 6.01 would not be satisfied, or (ii) the Company shall have breached or failed to comply with
any of its obligations under this Agreement such that the condition set forth in Section 6.02 would not be satisfied (in either
case, other than as a result of a material breach by Parent of any of its obligations under this Agreement) and such failure or breach
with respect to any such representation, warranty or obligation cannot be cured or, if curable, shall continue unremedied for a period
of twenty (20) days after the Company has received written notice from Parent of the occurrence of such failure or breach (provided that
in no event shall such twenty (20) day period extend beyond the Termination Date); or


 


(f)       by
Parent if the condition set forth in Section 6.09 would not be satisfied by August 15, 2021, and such failure with respect to
such condition cannot be cured, or if curable, shall continue unremedied for a period of seven (7) days after August 15, 2021.


 


Any party desiring
to terminate this Agreement shall give written notice of such termination to the other parties.


 


Section
8.02      Effect of Termination. In the event of a termination of
this Agreement pursuant to Section 8.01, this Agreement (other than the provisions of this Article VIII and Sections
3.25 (No Brokers), 3.27 (Disclosure) and 4.06 (No Brokers), 5.05 (Expenses), 5.06 (Confidentiality),
5.07 (Publicity), 11.08 (Governing Law), 11.09 (Jurisdiction; Venue; Service of Process) and 11.11(Waiver
of Jury Trial), which shall survive such termination) shall then be null and void and have no further force and effect and all other
rights and liabilities of the parties hereunder will terminate without any liability of any party to any other party, except for liabilities
arising in respect of material breaches under this Agreement by any party prior to such termination.


 




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Article
IX

NO SURVIVAL; LIMITATIONS


 


Section
9.01     No Survival. The representations and warranties contained
in this Agreement or any other document, certificate or instrument delivered by the Company or the Effective Time Holders pursuant to
this Agreement shall terminate at, and not survive, the Closing, and thereafter there will be no liability on the part of, nor will any
claim be made by, any party hereto or any of their respective Affiliates in respect thereof; provided, that (i) nothing in this Section
9.01 shall preclude any claim, or limit the liability of any party hereto to any other party hereto, for Fraud and (ii) any covenant
or agreement contained in this Agreement that by its terms is required to be performed in whole or in part after the Closing will survive
the Closing to the extent so required to be performed after the Closing. It is the express intent of the parties hereto that if the survival
period of the representation and warranties is shorter than the statute of limitations that would otherwise apply, then, by contract,
the applicable statute of limitations shall be reduced to the survival period contemplated hereby. The parties hereto further acknowledge
that the time periods set forth in this Section 9.01 for the assertion of claims under this Agreement are the result of arms’-length
negotiation among the parties and that they intend for the time periods to be enforced as agreed by the parties.


 


Section
9.02     Liability. No Effective Time Holder or any of its Non-Party
Affiliates shall have any liability under this Agreement with respect to claims for any inaccuracy or breach of the representations and
warranties set forth in this Agreement or any other document, certificate or instrument delivered by the Company or the Effective Time
Holders pursuant to this Agreement, other than as set forth in any Ancillary Agreement entered into by such Person or in respect of Fraud.
No Effective Time Holder’s liability hereunder (excluding with respect to such Effective Time Holder’s Fraud) shall exceed,
in the aggregate, the amount of the Merger Consideration actually received by such Effective Time Holder. In no event shall any Effective
Time Holder have any liability for the breach of this Agreement by any other Effective Time Holder or an act of Fraud committed by any
other Effective Time Holder. The amount recoverable hereunder shall be reduced by the amount of insurance or indemnification proceeds
or other amounts actually recovered from other sources by Parent or its Affiliates (following its commercially reasonable efforts), net
of any reasonable expenses related to the recovery of such payment.


 


Section
9.03      R&W Insurance; Retention Escrow.


 


(a)       The
parties hereto agree that the sole and exclusive remedy for any claims for any inaccuracy or breach of any representation or warranty
of the Company in this Agreement will be to recover from insurance, if any, including the R&W Insurance Policy. For a period of twelve
(12) months following the Closing Date, with respect to any and all Actions, Liabilities, Government Orders, Encumbrances, losses,
damages, bonds, dues, assessments, fines, penalties, Taxes, fees, costs (including costs of investigation, defense and enforcement of
this Agreement), expenses or amounts paid in settlement (in each case, including reasonable attorneys’ and experts’ fees
and expenses), whether or not involving a Person who is not a party to this Agreement (collectively, “Losses”) that
(i) arise as a result of any representation and warranty set forth in Article III failing to be true and correct (without reference
to the words “materiality,” “Material 


 




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Adverse
Effect” and words of similar import set forth herein)
and (ii) which are incurred by Parent or each of its respective Affiliates (including, following the Closing, the Company), or
the Representatives, Affiliates, successors and assigns of each of the foregoing Persons (each, a “Parent Retention Person”)
for which coverage under the R&W Insurance Policy would be available absent the “retention”
provided for in the R&W Insurance Policy, and if (A) fifty percent (50%) of the retention under the R&W Insurance Policy has
been satisfied or exhausted as a result of such Losses and (B) the remaining portion of the retention with respect to such Loss has not
yet been satisfied, the Parent Retention Person shall be entitled to claim funds from the Retention Escrow Fund to satisfy such retention
requirement if Parent has provided notice of such Loss to the Securityholder Representative on behalf of the Effective Time Holders (a
“Notice of Claim”) and the Securityholder Representative has not objected to such Notice of Claim within thirty (30)
days following receipt of the Notice of Claim (such claim, a “Retention Claim”); provided, however,
that in the event any Losses are incurred by any Parent Retention Person that relate to Taxes incurred by the Company Group in respect
of a Pre-Closing Tax Period with respect to Cash held by (or distributed by) the Irish Subsidiary for which coverage under the R&W
Insurance Policy would be available, the Parent Retention Person shall be entitled to claim funds from the Retention Escrow Fund to satisfy
such retention requirement under the R&W Insurance Policy and shall not be required to satisfy clause (A) of this sentence. If the
Securityholder Representative objects in writing (the “Objection Notice”) to the Losses set forth in the Notice of
Claim within the thirty (30) day period, Parent and the Securityholder Representative shall attempt in good faith to agree upon the rights
of the respective parties with respect to each of such claims within thirty (30) days after receipt of the Objection Notice.


 


(b)       If
the Securityholder Representative agrees with or fails to object to the Notice of Claim or Parent and the Securityholder Representative
otherwise agree to the amount of Losses incurred by the Parent Retention Person, Parent and the Securityholder Representative will deliver
a joint written instruction to the Escrow Agent to release an amount equal to the Losses incurred by such Parent Retention Person or
as otherwise agreed to by Parent and the Securityholder Representative. The Escrow Agent shall be entitled to conclusively rely on any
such joint written instruction and make distributions from the Retention Escrow Fund in accordance with the terms thereof. In such event,
the Escrow Agent shall promptly release and distribute to Parent from the Retention Escrow Fund, if and to the extent then available,
an amount equal to the Losses set forth in such joint written instruction.


 


(c)       The
Escrow Agent will hold the Retention Escrow Amount in the Retention Escrow Fund until 11:59 p.m. Eastern time on the date (the “Escrow
Release Date”) that is twelve (12) months following the Closing Date. On or before the second (2nd) Business Day after the
Escrow Release Date, Parent shall notify the Securityholder Representative in writing of the amount that Parent reasonably determines
in good faith to be necessary to satisfy all Retention Claims that have been asserted to the Securityholder Representative at or prior
to 11:59 p.m. Eastern time on the Escrow Release Date, but not resolved, at or prior to such time (such amount, the “Unresolved
Escrow Amount”). Within five (5) Business Days following the Escrow Release Date, Parent and the Securityholder Representative
shall deliver a joint instruction to the Escrow Agent instructing the Escrow Agent to release and distribute from the Retention Escrow
Fund (i) the amount then-remaining in the Retention Escrow Fund as of the Escrow Release Date (as 


 




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reduced
from time to time pursuant to the terms of this Agreement and the Escrow Agreement), minus (ii) an amount equal to the Unresolved Escrow
Amount to the Paying Agent for further distribution to the Effective Time Holders in accordance with their applicable Pro Rata Portion
of such amount.


 


Article
X

TAX MATTERS


 


Section
10.01    Tax Setoff. Parent shall have the right to reduce the
Earn-Out Payment by the amount of any Losses that constitute or that result from, arise out of or relate to, directly or indirectly,
(a) Taxes (or the non-payment thereof) of the Company Group for all Pre-Closing Tax Periods, and, in the case of a Straddle Period, the
portion of any Taxes of the Company Group for the portion of the Straddle Period ending on the Closing Date as determined pursuant to
Section 10.02, (b) all Taxes of any member of an affiliated, consolidated, combined or unitary group of which the Company Group
is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar
Legal Requirement, (c) any and all Taxes of any Person (other than any member of the Company Group, for any period Parent or any Affiliate
thereof) imposed on the Company Group as a transferee or successor, where the transaction giving rise to the liability on the part of
the Company Group occurred prior to the Closing by Legal Requirement, by Contractual Obligation (other than commercial agreements the
primary purpose of which does not relate to Taxes) or otherwise; (d) all Taxes of any Person imposed on the Company Group as a result
of any tax sharing agreement (other than customary agreements or arrangements with customers, vendors, lessors, lenders and the like
or other agreements that do not relate primarily to Taxes) entered on or into prior to the Closing Date for any Pre-Closing Tax Period;
and (e) fifty percent (50%) of all transfer Taxes; provided, that Parent will not reduce the Earn-Out Payment for the amount of
any such Taxes (i) to the extent reflected as a Liability in the calculation of Closing Net Working Capital, or included in the Company
Transaction Expenses or the amount of Closing Indebtedness, or (ii) arise solely due to actions taken by the Parent (or any Affiliate
thereof) on the Closing Date after the Closing that are outside of the Ordinary Course of Business (other than actions contemplated by
this Agreement or a Contractual Obligation entered into prior to the Closing Date) or (iii) solely as a direct result of a breach by
Parent or any Affiliate thereof of any covenant or representation contained in this Agreement.


 


Section
10.02   Straddle Period. In the case of any taxable period that
includes (but does not end on) the Closing Date (a “Straddle Period”), the amount of any Taxes of the Company Group
based upon or measured by income, gain, receipts, sales, activities, proceeds, profits, events or similar items for the Pre-Closing Tax
Period will be determined based on an interim closing of the books as of the close of business on the Closing Date (and for such purpose,
the taxable period of any partnership or other pass-through entity in which the Company Group holds a beneficial interest will be deemed
to terminate at such time), provided that any item determined on an annual or periodic basis (such as deductions for depreciation or
real estate Taxes) shall be apportioned on a daily basis. The amount of other Taxes for a Straddle Period which relate to the Pre-Closing
Tax Period will be deemed to be the amount of such Tax for the entire taxable period multiplied by a


 




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fraction,
the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number
of days in such Straddle Period.


 


Section
10.03    Preparation of Tax Returns.


 


(a)        Parent
(at its cost and expense) shall prepare or cause to be prepared, and file or cause to be filed, all Tax Returns for the Company Group
with an initial due date after the Closing Date (“Parent Tax Returns”). In the case of a Parent Tax Return for a Pre-Closing
Tax Period, including a Straddle Period (“Company Tax Returns”), Parent shall prepare or cause to be prepared such
Company Tax Returns consistent with the past practice of the applicable member of the Company Group except as otherwise required by applicable
Legal Requirements. At least thirty (30) days prior to the date on which any Company Tax Return is required to be filed (taking into
account any valid extensions) (or, if such due date, taking into account any valid extensions, is within thirty (30) days following the
Closing Date, as promptly as practical following the Closing Date), Parent shall submit such Company Tax Return, including the allocation
of Taxes between the pre-Closing and post-Closing portions of the Straddle Period (consistent with Straddle Period allocations described
in Section 10.02), to the Securityholder Representative for the Securityholder Representative’s review. The Securityholder
Representative shall provide written notice to Parent of its disagreement with any items in such Company Tax Return or the Straddle Period
allocation of Taxes within ten (10) days of its receipt of such Company Tax Return or related allocation of Taxes and if the Securityholder
Representative fails to provide such notice, such Company Tax Return, and any related allocation of Taxes, shall become final and binding
upon the parties. If Parent and the Securityholder Representative are unable to resolve any dispute regarding any Company Tax Return
or related allocation of Taxes within five (5) days after the Securityholder Representative delivers such notice of disagreement, then
the dispute will be finally and conclusively resolved by the Accounting Firm in accordance with the dispute resolution procedure set
forth Section 2.08(d), provided that the Accounting Firm shall resolve any dispute in favor of the Securityholder Representative
if the Securityholder Representative’s position is (i) supported by a “more likely than not” standard under the Code,
as determined by the Accounting Firm and (ii) not inconsistent with matters addressed expressly in this Agreement. To the extent that
the Tax Returns described in this Section 10.03 indicate (or would indicate after taking into account the Tax Liability Amount) that
the Company Group has made (or would have made) an overpayment of Taxes for any Pre-Closing Tax Period (taking into account all estimated
Tax payments that have been made with respect to such Taxes prior to the Closing Date and the Tax Liability Amount included as Indebtedness)
exceeds the amount of such Taxes shown as due on any Tax Return filed after the Closing Date, Parent shall, upon receipt of such overpayment,
pay or cause to be paid such overpayment to the Securityholder Representative, on behalf of the Effective Time Holders, in immediately
available funds using wire transfer instructions as designated in writing by the Securityholder Representative.


 


(b)       Notwithstanding
anything to the contrary herein, the Company shall make a deemed dividend election pursuant to Treasury Regulation Section 1.1297-3/1.1298-3(c)
with respect to SilverCloud Health Limited on its U.S. federal income Tax Return for the year ended December 31, 2020, whether filed
prior to after the Closing Date.


 




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Section
10.04    Tax Proceedings.


 


(a)        Parent
shall promptly notify the Securityholder Representative of any notice of deficiency, audit or contest regarding any Tax Return of the
Company Group relating to a Pre-Closing Tax Period if such audit or contest would reasonably be expected to result in a reduction to
the Earn-Out Payment pursuant to Section 10.01 (an “Effective Time Holder Tax Audit”); provided, that, no failure
or delay of Parent in providing notice pursuant to the foregoing shall reduce or otherwise affect the right of Parent to reduce the Earn-Out
Payment pursuant to Section 10.01, except to the extent such Effective Time Holders are actually prejudiced by such failure or
delay.


 


(b)       Parent
shall control any Effective Time Holder Tax Audits and shall keep the Securityholder Representative fully and timely informed with respect
to the commencement, status and nature of any Effective Time Holder Tax Audit. Parent shall, in good faith, allow the Securityholder
Representative to make comments to Parent regarding the conduct of or positions taken in any such proceeding. The Securityholder Representative
shall be entitled to fully participate in any such Effective Time Holder Tax Audit. The Securityholder Representative shall have the
right to consent prior to any settlement with respect to (or abandonment of) any such Effective Time Holder Tax Audit (provided such
consent cannot be unreasonably withheld, conditioned or delayed).


 


(c)       Parent
shall bear its expenses incurred in connection with any Effective Time Holder Tax Audit and the Securityholder Representative (on behalf
of the Effective Time Holders) shall bear its expenses incurred in connection with any Effective Time Holder Tax Audit.


 


(d)       To
the extent of any inconsistencies between any provision of this Section 10.04 in a matter principally involving Taxes, the provisions
of this Section 10.04 shall control.


 


Section
10.05   Tax Sharing Agreements. All Tax sharing agreements or
similar Contractual Obligations and all powers of attorney with respect to or involving the Company Group will be terminated prior to
the Closing and, after the Closing, the Company Group will not be bound thereby or have any Liability thereunder.


 


Section
10.06   Certain Taxes and Fees. All transfer, documentary, sales,
use, stamp, registration and other such Taxes, and any conveyance fees or recording charges incurred in connection with the Contemplated
Transactions, shall be borne and paid fifty percent (50%) by Parent and fifty percent (50%) by the Effective Time Holders in accordance
with their Pro Rata Portion. Parent will, at its expense, file all necessary Tax Returns and other documentation with respect to all
such Taxes, fees and charges and, if required by applicable Legal Requirements, the Effective Time Holders will (and will cause their
Affiliates to) join in the execution of any such Tax Returns and other documentation. The Effective Time Holders and Parent shall cooperate
with each other to obtain any certificate or other document from any Governmental Authority or any other Person as may be necessary to
mitigate, reduce or eliminate any transfer Tax.


 


Section
10.07   Tax Refunds. Any Tax refunds (including interest thereon
paid by the applicable Tax authority) that are received by Parent or any of its Affiliates (including, following


 




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the
Closing, for the avoidance of doubt, the Company Group), and any amounts credited against any Tax to which Parent or any of its Affiliates
(including, following the Closing, for the avoidance of doubt, the Company Group) become entitled in lieu of a refund, in each case that
relate to any Pre-Closing Tax Period (or the portion of any Straddle Period ending on the end of the Closing Date) shall be for the account
of the Effective Time Holders, except to the extent any such refunds or credits are included as a current asset in the calculation of
Closing Net Working Capital and taken into account in determining the Merger Consideration, as finally determined (excluding any refund
or credit attributable to any loss or other Tax attribute incurred in a taxable period (or portion of a Straddle Period) beginning after
the Closing Date (e.g., as a carryback)), and provided that, no such Tax refund shall be for the account of the Effective Time Holders
pursuant to this Section 10.07 to the extent that such Tax refund is not in respect to Taxes that (1) were paid prior to the Closing
or borne by the Effective Time Holders, (2) were taken into account in determining the Merger Consideration, or (3) that reduce the Earn-Out
Payment. Parent shall pay over to the Paying Agent for further distribution to the Effective Time Holders in accordance with the Consideration
Spreadsheet, as additional consideration for shares of the Company Capital Stock, Company Options and Company Warrants, any such refund
received in cash or the amount of any such credit within fifteen (15) days after entitlement thereto, in each case, net of any Taxes
incurred in connection with the receipt of such refund or credit or with respect to each Effective Time Holder and reasonable out-of-pocket
expenses incurred in connection with such refund or credit. At the Securityholder Representative’s written request, (based on a
request from the Advisory Group), the Parent shall use commercially reasonable efforts to timely and properly prepare, or cause to be
prepared, and file, or cause to be filed (at the cost of the Effective Time Holders), any claim for refund from any Pre-Closing Tax Period.
The cost of the preparation of the Tax Returns in connection with the Tax refund with respect to a Pre-Closing Tax Period (including
Straddle Period) shall be borne by the Securityholder Representative and Parent in the same ratio as the receipt of the related tax refund.
If any refund or credit paid to the Effective Time Holders pursuant to this Section 10.07 is subsequently required to be repaid
to a Governmental Authority or paid over to a third party pursuant to any Contractual Obligation (other than this Agreement), the Effective
Time Holders shall promptly return their respective share of such amount to Parent.


 


Section
10.08   Prohibited Tax Actions. Without the prior written consent
of the Securityholder Representative (which shall not be unreasonably withheld, conditioned or delayed), Parent shall not, and shall
not permit any of its Affiliates (including, after the Closing for the avoidance of doubt, the Company Group) to, (i) except upon the
Securityholder Representative’s written request pursuant to Section 10.07 or pursuant to Section 10.03 file, re-file,
supplement, or amend any Tax Return of any member of the Company Group for any Pre-Closing Tax Period, (ii) voluntarily approach any
Governmental Authority regarding any Taxes or Tax Returns of any member of the Company Group that were originally due on or before the
Closing Date, (iii) make an election under Sections 336 or 338 of the Code (or any comparable applicable provision of state, local or
non-U.S. Tax Law) with respect to the transactions contemplated by this Agreement, (iv) make any Tax election for any member of the Company
Group effective on or before the Closing Date, (v) take any action that is outside the Ordinary Course of Business after the Closing
on the Closing Date relating to Taxes that creates a Tax liability on or prior to the Closing Date, or (vi) except pursuant to Section
10.03(a) or upon the Securityholder Representative’s written request pursuant to Section 10.07, carryback any net operating
losses to a Tax period (or portion


 




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thereof)
ending on or before the Closing Date, in each case only to the extent such action would reasonably be expected to result in a reduction
to the Earn-Out Payment pursuant to Section 10.01 or other material adverse consequences to the Effective Time Holders.


 


Section
10.09    Cooperation on Tax Matters. The parties will cooperate
fully, as and to the extent reasonably requested by any of Parent, the Company or the Securityholder Representatives, in connection with
any Tax matters relating to the Company Group (including by the provision of reasonably relevant records or information). The party requesting
such cooperation will pay the reasonable out-of-pocket expenses of the other parties. Notwithstanding anything to the contrary in this
Agreement, the Securityholder Representative shall have no obligation to prepare or file any Tax Returns.


 


Article
XI

MISCELLANEOUS


 


Section
11.01   Notices. Any notice, request, demand, claim or other
communication required or permitted to be delivered, given or otherwise provided under this Agreement must be in writing and must be
delivered personally, delivered by nationally recognized overnight courier service, sent by certified or registered mail, postage prepaid,
sent by electronic mail in .pdf or similar format (with confirmation of transmission). Any such notice, request, demand, claim or other
communication shall be deemed to have been delivered and given (a) when delivered, if delivered personally, (b) the Business Day after
it is deposited with such nationally recognized overnight courier service, if sent for overnight delivery by a nationally recognized
overnight courier service, (c) the day of sending, if sent by electronic mail prior to 5:00 p.m. (Eastern time) on any Business Day or
the next succeeding Business Day if sent by electronic mail after 5:00 p.m. (Eastern time) on any Business Day or on any day other than
a Business Day or (d) five Business Days after the date of mailing, if mailed by certified or registered mail, postage prepaid, in each
case, to the following address or, if applicable, electronic mail address; provided, that with respect to notices delivered to
the Securityholder Representative, such notices must be delivered solely via facsimile or via electronic mail:


 


If to the
Company (prior to the Closing), to:


 


SilverCloud Health
Holdings, Inc.

50 Milk Street

16th Floor

Boston, MA 02109

Email: ken.cahill@silvercloudhealth.com

Attention: Ken Cahill


 


with a copy
(which shall not constitute notice) to:


 


Dentons Ireland
LLP

Joshua Dawson House

Dawson Street

Dublin 2, D02 RY95





 




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Ireland

Email: shane.odonnell@dentons.com

Attention: Shane O’Donnell





and


 


Dentons US LLP





1221 Avenue of the
Americas





New York, NY 10020





Email: victor.boyajian@dentons.com;
ilan.katz@dentons.com





Attention: Victor
Boyajian; Ilan Katz


 


If to Parent
(or to the Company after the Closing), to:


 


American Well Corporation

75 State Street, 26th Floor

Boston, MA 02109

Attention: Legal Department

Email:


 


with a copy
(which shall not constitute notice) to:


 


Ropes
& Gray LLP





Prudential
Tower





800
Boylston Street





Boston,
MA 02199





E-mail:
Michael.Beauvais@ropesgray.com





Attn:
Michael D. Beauvais


 


If to the
Securityholder Representative, to:


 


Fortis Advisors
LLC





Attention: Notices
Department (Project Shannon)





Facsimile No.: (858)
408-1843





Email: notices@fortisrep.com


 


with a copy
(which shall not constitute notice) to:


 


Each
of the parties to this Agreement may specify a different address, facsimile number or electronic mail address by giving notice in accordance
with this Section 11.01 to each of the other parties hereto.


 


Section
11.02    Succession and Assignment; No Third-Party Beneficiaries.
Subject to the immediately following sentence, this Agreement will be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, each of which such successors and permitted assigns will be deemed to be a party hereto
for all purposes hereof. No party may assign, delegate or otherwise transfer either this Agreement or any of its rights, interests


 




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or
obligations hereunder without the prior written approval of the other parties (with the Securityholder Representative acting for all
of the Effective Time Holders), and any attempt to do so will be null and void ab initio; provided, that Parent may assign
this Agreement and any or all of its rights and interests hereunder to one or more of its Affiliates or designate one or more of its
Affiliates to perform its obligations hereunder, in each case, so long as Parent is not relieved of any liability or obligations hereunder.
This Agreement is for the sole benefit of the parties hereto and their successors and permitted assignees and nothing herein expressed
or implied will give or be construed to give any Person, other than the parties hereto and such successors and permitted assignees, any
other right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. For the avoidance of doubt, it is hereby
acknowledged and agreed by the parties hereto that a D&O Indemnified Party that is not party hereto is intended to be an express
third party beneficiary of this Agreement.


 


Section
11.03   Amendments and Waivers. No amendment or waiver of any
provision of this Agreement will be valid and binding unless it is in writing and signed, in the case of an amendment, by Parent, the
Company and the Securityholder Representative (acting for all of the Effective Time Holders), or in the case of a waiver, by the party
(or in the case of any or all of the Effective Time Holders, by the Securityholder Representative) against whom the waiver is to be effective.
No waiver by any party of any breach or violation of, default under or inaccuracy in any representation, warranty or covenant hereunder,
whether intentional or not, will be deemed to extend to any prior or subsequent breach or violation of, default under, or inaccuracy
in, any such representation, warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent
such occurrence. No delay or omission on the part of any party in exercising any right, power or remedy under this Agreement will operate
as a waiver thereof.


 


Section
11.04    Provisions Concerning the Securityholder Representative.


 


(a)       Appointment.
The Securityholder Representative is hereby appointed, authorized and empowered to act as the sole and exclusive agent, proxy and attorney-in-fact
for each Effective Time Holder for all purposes of this Agreement, the Escrow Agreement and the Contemplated Transactions, with full
and exclusive power and authority to act on such Effective Time Holder’s behalf. The appointment of the Securityholder Representative
and the powers, immunities and rights to indemnification granted to the Securityholder Representative Group hereunder: (i) are coupled
with an interest, shall be irrevocable and shall not be affected by the death, incapacity, insolvency, bankruptcy, illness or other inability
to act of any Effective Time Holder and (ii) shall survive the delivery of an assignment by any Effective Time Holder of the whole or
any fraction of his, her or its interest in the Adjustment Escrow Fund. Without limiting the generality of the foregoing, the Securityholder
Representative is hereby authorized, on behalf of the Effective Time Holders, to:


 


(i)       in
connection with the Closing, execute and receive all documents, instruments, certificates, statements and agreements on behalf of and
in the name of each Effective Time Holder necessary to effectuate the Closing and consummate the Contemplated Transactions;


 




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(ii)       receive
and give all notices and service of process, make all filings, enter into all Contractual Obligations, make all decisions, bring, prosecute,
defend, settle, compromise or otherwise resolve all claims, disputes and Actions, authorize payments in respect of any such claims, disputes
or Actions, and take all other actions, in each case, with respect to the matters set forth in Section 2.08, Section 2.09,
Article IX or Article X or any other Actions directly or indirectly arising out of or relating to this Agreement, the Escrow
Agreement or the Contemplated Transactions;


 


(iii)       receive
and give all notices, make all decisions and take all other actions on behalf of the Effective Time Holders in connection with the escrow
accounts established pursuant to the Escrow Agreement, including giving any instructions or authorizations to the Escrow Agent to pay
from such escrow accounts any amounts owed by the Effective Time Holders pursuant to this Agreement or the Escrow Agreement or otherwise
in connection with the Contemplated Transactions;


 


(iv)       execute
and deliver, should it elect to do so in its good faith discretion, on behalf of the Effective Time Holders, any amendment to, or waiver
of, any term or provision of this Agreement or the Escrow Agreement, or any consent, acknowledgment or release relating to this Agreement
or the Escrow Agreement; and


 


(v)       take
all other actions permitted or required to be taken by or on behalf of the Effective Time Holders under this Agreement or the Escrow
Agreement and exercise any and all rights that the Effective Time Holders or the Securityholder Representative are permitted or required
to do or exercise under this Agreement or the Escrow Agreement.


 


(b)       Advisory
Group. Certain Effective Time Holders have entered into an engagement agreement (the “Securityholder Representative Engagement
Agreement”) with the Securityholder Representative to provide direction to the Securityholder Representative in connection
with its services under this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement (such Effective
Time Holders, including their individual representatives, collectively hereinafter referred to as the “Advisory Group”).


 


(c)        Liability.
Neither the Securityholder Representative nor its members, managers, directors, officers, contractors, agents and employees, nor any
member of the Advisory Group (collectively, the “Securityholder Representative Group”), shall be held liable by any
of the Effective Time Holders for actions or omissions in exercising or failing to exercise all or any of the power and authority of
the Securityholder Representative pursuant to this Agreement, the Escrow Agreement and the Securityholder Representative Engagement Agreement,
except in the case of the Securityholder Representative’s gross negligence, bad faith or willful misconduct. The Securityholder
Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts that it reasonably
determines to be experienced in the matter at issue, and will not be liable to any Effective Time Holder for any action taken or omitted
to be taken in good faith based on such advice. The Effective Time Holders will jointly and severally indemnify, defend and hold harmless
(in accordance with their Pro Rata Portion) the members of the Securityholder Representative Group from any Losses arising out of the
Securityholder


 




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Representative
serving as the Securityholder Representative hereunder, under the Escrow Agreement and under the Securityholder Representative Engagement
Agreement, except for Losses arising out of or caused by the Securityholder Representative’s gross negligence, bad faith or willful
misconduct, including, without limitations, (i) the costs and expenses of investigations and defense of claims and in connection with
seeking recovery from insurers and (ii) reasonable expenses, disbursements and advances (including fees and disbursements of its counsel,
experts and other agents and consultants) incurred by the Securityholder Representative in such capacity (collectively, the “Representative
Losses”) which shall be satisfied first, from the Securityholder Representative Reserve, second, from any distribution of the
Adjustment Escrow Fund or Earn-Out Payments otherwise distributable to the Effective Time Holders at the time of distribution, and third,
directly from the Effective Time Holders. The Securityholder Representative is serving in its capacity as such solely for purposes of
administrative convenience, and is not personally liable in such capacity for any of the obligations of the Effective Time Holders hereunder,
and Parent agrees that they will not look to the personal assets of any member of the Securityholder Representative Group, acting in
such capacity, for the satisfaction of any obligations to be performed by the Effective Time Holders hereunder. The Effective Time Holders
acknowledge that the Securityholder Representative shall not be required to expend or risk its own funds or otherwise incur any financial
liability in the exercise or performance of any of its powers, rights, duties or privileges or pursuant to this Agreement, the Escrow
Agreement, the Securityholder Representative Engagement Agreement or the transactions contemplated hereby or thereby. Furthermore, the
Securityholder Representative shall not be required to take any action unless the Securityholder Representative has been provided with
funds, security or indemnities which, in its determination, are sufficient to protect the Securityholder Representative against the costs,
expenses and liabilities which may be incurred by the Securityholder Representative in performing such actions.


 


(d)       Reliance
on Appointment; Successor Securityholder Representative. Parent may rely on the appointment and authority of the Securityholder Representative
granted pursuant to this Section 11.04 until receipt of written notice of the appointment of a successor Securityholder Representative
made in accordance with this Section 11.04. In so doing, Parent may rely on any and all actions taken by and decisions of the
Securityholder Representative under this Agreement and the Escrow Agreement notwithstanding any dispute or disagreement among any of
the Effective Time Holders or the Securityholder Representative with respect to any such action or decision without any Liability to,
or obligation to inquire of, any Effective Time Holder, the Securityholder Representative or any other Person. Any decision, act, consent
or instruction of the Securityholder Representative shall constitute a decision of all the Effective Time Holders and shall be final
and binding upon each of the Effective Time Holders, and all defenses which may be available to any Effective Time Holder to contest,
negate or disaffirm the action of the Securityholder Representative taken in good faith under this Agreement, the Escrow Agreement or
the Securityholder Representative Engagement Agreement are waived. At any time after the Closing, with or without cause, by a written
instrument that is signed in writing by holders of at least a majority-in-interest of the Effective Time Holders (determined by reference
to their respective Pro Rata Portion) and delivered to Parent, the Effective Time Holders may remove and designate a successor Securityholder
Representative. If the Securityholder Representative shall at any time resign or otherwise cease to function in its capacity as such
for any reason whatsoever,


 




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and
no successor is appointed by such holders of a majority-in-interest of the Effective Time Holders within ten (10) Business Days, then
Parent shall have the right to appoint another Effective Time Holder to act as the replacement Securityholder Representative who shall
serve as described in this Agreement and, under such circumstances, Parent shall be entitled to rely on any and all actions taken and
decisions made by such replacement Securityholder Representative.


 


(e)       Notwithstanding
the foregoing, the Securityholder Representative shall have no obligation to act on behalf of the Effective Time Holders, except as expressly
provided herein, in the Escrow Agreement and in the Securityholder Representative Engagement Agreement, and for purposes of clarity,
there are no obligations of the Securityholder Representative in any ancillary agreement, schedule, exhibit or the Disclosure Schedule.
The Securityholder Representative shall be entitled to: (i) rely upon the Consideration Spreadsheet, (ii) rely upon any signature believed
by it to be genuine, and (iii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Effective
Time Holder or other party. The Securityholder Representative may resign at any time and may be removed or replaced by a majority vote
of the Advisory Group; provided, that any resignation of the Securityholder Representative will not be effective until a new Securityholder
Representative shall be appointed by the Advisory Group and has confirmed his, her or its acceptance of such appointment in writing to
Parent. The immunities and rights to indemnification shall survive the resignation or removal of the Securityholder Representative or
any member of the Advisory Group and the Closing and/or any termination of this Agreement and the Escrow Agreement.


 


(f)       Securityholder
Representative Reserve. The Securityholder Representative Reserve shall be held by the Securityholder Representative in a segregated
client account and shall be used (i) for the purposes of paying directly or reimbursing the Securityholder Representative for any Losses
incurred pursuant to this Agreement, the Escrow Agreement or the Securityholder Representative Engagement Agreement, or (ii) as otherwise
determined by the Advisory Group. The Securityholder Representative is not providing any investment supervision, recommendations or advice
and shall have no responsibility or liability for any loss of principal of the Securityholder Representative Reserve other than as a
result of its gross negligence or willful misconduct. The Securityholder Representative is not acting as a withholding agent or in any
similar capacity in connection with the Securityholder Representative Reserve and has no tax reporting or income distribution obligations.
The Effective Time Holders will not receive any interest on the Securityholder Representative Reserve and assign to the Securityholder
Representative any such interest. Subject to Advisory Group approval, the Securityholder Representative may contribute funds to the Securityholder
Representative Reserve from any consideration otherwise distributable to the Effective Time Holders. As soon as reasonably determined
by the Securityholder Representative that the Securityholder Representative Reserve is no longer required to be withheld, the Securityholder
Representative shall distribute the remaining Securityholder Representative Reserve (if any) to the Paying Agent for further distribution
to the Effective Time Holders.


 


Section
11.05Entire Agreement. This Agreement, together with the other
Ancillary Agreements, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes
any and all prior discussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect
thereto. There are no


 




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restrictions,
promises, warranties, covenants, or undertakings, other than those expressly provided for herein and therein.


 


Section
11.06    Counterparts; Facsimile Signature. This Agreement may
be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute but one
and the same instrument. This Agreement will become effective when duly executed and delivered by each party hereto. Counterpart signature
pages to this Agreement may be delivered by facsimile or electronic delivery (i.e., by email of a PDF signature page) and each
such counterpart signature page will constitute an original for all purposes.


 


Section
11.07   Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other
jurisdiction. In the event that any provision hereof would, under applicable Legal Requirements, be invalid or unenforceable in any respect,
each party hereto intends that such provision will be construed by modifying or limiting it so as to be valid and enforceable to the
maximum extent compatible with, and possible under, applicable Legal Requirements.


 


Section
11.08    Governing Law. This Agreement, the rights of the parties
hereunder and all Actions arising in whole or in part under or in connection herewith (including any Action based upon, arising out of,
or related to any representation or warranty made in connection with this Agreement or as an inducement to enter into this Agreement),
will be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware, including its
statute of limitations, without giving effect to any choice or conflict of law provision or rule that would cause the application of
the laws of any other jurisdiction.


 


Section
11.09    Jurisdiction; Venue; Service of Process.


 


(a)       Jurisdiction.
Upon the terms and subject to the conditions of Section 11.09, each of the parties to this Agreement, by its execution hereof,
(i) hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the District of Delaware, or if
such Action may not be brought in federal court, the state courts of Delaware for the purpose of any Action among any of the parties
relating to or arising in whole or in part under or in connection with this Agreement, any Ancillary Agreement or the Contemplated Transactions,
(ii) hereby waives to the extent not prohibited by applicable Legal Requirements, and agrees not to assert, by way of motion, as a defense
or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that any such Action brought in one of the above-named courts should be dismissed
on grounds of forum non conveniens, should be transferred or removed to any court other than one of the above-named courts, or
should be stayed by reason of the pendency of some other Action in any other court other than one of the above-named courts or that this
Agreement, any Ancillary Agreement or the subject matter hereof or thereof may not be enforced in or by such court and (iii) hereby agrees
not to commence any such Action other than before one of the above-named courts. Notwithstanding the previous sentence a party may commence
any


 




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Action
in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named
courts.


 


(b)       Venue.
Each of the parties to this Agreement agrees that for any Action among any of the parties relating to or arising in whole or in part
under or in connection with this Agreement, any Ancillary Agreement or the Contemplated Transactions, such party shall bring such Action
only in the State of Delaware. Notwithstanding the previous sentence a party may commence any Action in a court other than the above-named
courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts. Each party hereto further waives
any claim and will not assert that venue should properly lie in any other location within the selected jurisdiction.


 


(c)       Service
of Process. Each of the parties to this Agreement hereby (i) consents to service of process in any Action among any of the parties
hereto relating to or arising in whole or in part under or in connection with this Agreement, any Ancillary Agreement or the Contemplated
Transactions in any manner permitted by Delaware law, (ii) agrees that service of process made in accordance with clause (i) or made
by registered or certified mail, return receipt requested, at its address specified pursuant to Section 11.01, will constitute
good and valid service of process in any such Action and (iii) waives and agrees not to assert (by way of motion, as a defense, or otherwise)
in any such Action any claim that service of process made in accordance with clause (i) or (ii) does not constitute good and valid service
of process.


 


Section
11.10Specific Performance. Each of the parties acknowledges
and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed
in accordance with their specific terms or otherwise are breached or violated. Accordingly, each of the parties agrees that, without
posting a bond or other undertaking, the other parties will be entitled to an injunction or injunctions to prevent breaches or violations
of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any Action instituted
in any court of the United States or any state thereof having jurisdiction over the parties and the matter in addition to any other remedy
to which it may be entitled, at law or in equity. Each party further agrees that, in the event of any action for specific performance
in respect of such breach or violation, it will not assert that the defense that a remedy at law would be adequate.


 


Section
11.11    Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY ANCILLARY
AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING,
VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY


 




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IN
ANY ACTION WHATSOEVER BETWEEN OR AMONG THEM RELATING TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS
AND THAT SUCH ACTIONS WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.


 


Section
11.12    No Recourse to Non-Party Affiliates. All claims or causes
of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of, be connected with or relate in
any manner to this Agreement, or the negotiation, execution or performance of this Agreement, may be made only against the entities or
individuals that are expressly identified as parties hereto and the Effective Time Holders. No Person who is not a named party to this
Agreement or an Effective Time Holder, including any director, officer, employee, incorporator, member, partner, stockholder, Affiliate,
agent, attorney or Representative of any named party to this Agreement who is not otherwise a party to this Agreement or an Effective
Time Holder (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity,
or based upon any theory that seeks to impose liability of an entity party against its owners or affiliates) for any obligations or liabilities
arising under, out of, or in connection with this Agreement or for any claim based on, in respect of, or by reason of this Agreement
or its negotiation or execution; and each party hereto waives and releases all such liabilities against any such Non-Party Affiliates.


 


Section
11.13    Waiver of Conflict; Privilege.


 


(a)       Each
of the parties hereto acknowledges and agrees that Dentons US LLP and Dentons Europe LLP (collectively “Dentons”),
has acted as counsel to the Company in connection with the negotiation of this Agreement and consummation of the Contemplated Transactions,
and that Dentons has not acted as counsel for any other Person in connection with the Contemplated Transactions and that no other party
to this Agreement or Person has the status of a client of Dentons with respect to the Contemplated Transactions for conflict of interest
or any other purposes as a result thereof. Upon and after the Closing, Company Group shall cease to have any attorney-client relationship
with Dentons.


 


(b)       Parent
hereby consents and agrees to, and agrees to cause the Company to consent and agree to, Dentons representing the Securityholder Representative
or the Effective Time Holders after the Closing in any matter involving this Agreement or the Contemplated Transactions, including with
respect to disputes in which the interests of the Securityholder Representative or the Effective Time Holders may be directly adverse
to Parent and its Affiliates (including the Company), even though Dentons represented the Company in connection with this Agreement and
the consummation of the Contemplated Transactions.


 


(c)       In
connection with the foregoing, Parent hereby irrevocably waives and agrees not to assert, and agrees to cause the Company to irrevocably
waive and not to assert, any conflict of interest arising from or in connection with (i) Dentons’ prior representation of the Company
and (ii) Dentons’ representation of the Securityholder Representative prior to and after the Closing or the Effective Time Holders
after the Closing in any matter involving this Agreement or the Contemplated Transactions.


 




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(d)       Parent
further agrees, on behalf of itself and, after the Closing, on behalf of the Company, that all communications in any form or format whatsoever
between or among any of Dentons, the Securityholder Representative, the Effective Time Holders, the Company or any of their respective
directors, officers, employees or other representatives that relate primarily to the negotiation, documentation and consummation of the
Contemplated Transactions or any dispute arising under this Agreement (collectively, the “Deal Communications”) shall
be deemed to be retained and owned by the Effective Time Holders and controlled by the Securityholder Representative, and shall not pass
to or be claimed by Parent or the Company. All Deal Communications shall be deemed to be attorney-client privileged (the “Privileged
Deal Communications”) and shall remain privileged after the Closing and the privilege and the expectation of client confidence
relating thereto shall belong solely to the Effective Time Holders and be controlled by the Securityholder Representative and shall not
pass to or be claimed by Parent or the Company.


 


(e)       To
the extent that files or other materials maintained by Dentons consist of Deal Communications that constitute property of its clients,
only the Effective Time Holders and the Securityholder Representative shall hold such property rights and Dentons shall have no duty
to reveal or disclose any such files or other materials by reason of any attorney-client relationship between Dentons, on the one hand,
and the Company, on the other hand.


 


(f)       Parent
agrees that it will not, and that it will cause the Company not to, except as necessary in connection with an action which does not constitute
a dispute between or among any of the parties hereto, (i) seek to have the Securityholder Representative waive the attorney-client or
other privilege with respect to Privileged Deal Communications, or assert that Parent or the Company have the right to waive the attorney-client
or other privilege with respect to Privileged Deal Communications or (ii) seek to obtain the Deal Communications from Dentons. In furtherance
of the foregoing, it shall not be a breach of any provision of this Agreement if prior to the Closing, the Effective Time Holders, the
Securityholder Representative, the Company or any of their respective Affiliates or representatives takes any action to protect from
access or remove from the premises of the Company (or any offsite back-up or other facilities) any Deal Communications, including without
limitation by segregating, encrypting, copying, deleting, erasing, exporting or otherwise taking possession of any Deal Communications.


 


[Signature
pages follows.]


 




    104
 
Certain confidential information contained in this document, marked by [***], has been omitted because American Well Corporation has determined that the information (i) is not material and (ii) is the type that American Well Corporation customarily and actually treats as private or confidential.



     


    

IN
WITNESS WHEREOF, each of the undersigned has executed this Stock Purchase Agreement as of the date first above written.


 


 


	PArent:	AMERICAN WELL CORPORATION
	 	 
	 	 
	 	By:  	/s/ Bradford Gay
	 	 	Name: Bradford Gay
	 	 	Title: SVP & General Counsel
	 	 
	The Company:	SILVERCLOUD HEALTH HOLDINGS INC.,
	 	 
	 	 
	 	By: 	/s/ Ken Cahill
	 	 	Name: Ken Cahill
	 	 	Title: Chief Executive Officer
	 	 
	MERGER SUB:	SHANNON MERGER SUBSIDIARY, Inc.,
	 	 
	 	 
	 	By: 	/s/ Bradford Gay
	 	 	Name: Bradford Gay
	 	 	Title: President
	 	 	 
	Sister subsidiary:	Shannon MERGER Sister SubSIDIARY, LLC, by American Well Corporation, in its capacity as sole member of Shannon Merger Sister Subsidiary, LLC
	 	 
	 	 	 	 
	 	By: 	/s/ Bradford Gay
	 	 	Name: Bradford Gay
	 	 	Title: SVP & General Counsel
	 	 
	Securityholder 	FORTIS ADVISORS LLC
	REPRESENTATIVE:	 
	 	 
	 	By:	/s/ Richard Fink
	 	 	Name: Richard Fink 
	 	 	Title: Managing Director





 


 





 


 




    Certain confidential information contained in this document, marked by [***], has been omitted because American Well Corporation has determined that the information (i) is not material and (ii) is the type that American Well Corporation customarily and actually treats as private or confidential.