Exhibit 10.4


 


FORM OF


AMENDED AND RESTATED 


REGISTRATION RIGHTS AGREEMENT 


 


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


 


RECITALS


 


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


 


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


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


Article I

DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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“Permitted Transferees”
shall mean (a) with respect to the Sponsor and its respective Permitted Transferees, (i) prior to the expiration of the Lock-up Period,
any person or entity to whom such Holder is permitted to transfer such Registrable Securities prior to the expiration of the Lock-up Period
pursuant Section 1.8(b) of the Sponsor Support Agreement and (ii) after the expiration of the Lock-up Period, any person or entity, except
to the extent that any applicable agreement between such Holder and the Company prohibits such transfer; (b) with respect to the Embark
Holders and their respective Permitted Transferees, (i) prior to the expiration of the Lock-up Period, any person or entity to whom such
Holder is permitted to transfer such Registrable Securities prior to the expiration of the Lock-up Period pursuant to Section 7.12 of
the Bylaws of the Company and (ii) after the expiration of the Lock-up Period, any person or entity, except to the extent that any applicable
agreement between such Holder and the Company prohibits such transfer; and (d) with respect to all other Holders and their respective
Permitted Transferees, any person or entity, except to the extent that any applicable agreement between such Holder and the Company prohibits
such transfer.


 


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


 


“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all materials incorporated by reference in such prospectus.


 


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


 






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“Registration”
shall mean a registration, including any related Shelf Takedown, effected by preparing and filing a Registration Statement, Prospectus
or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder,
and such Registration Statement becoming effective.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Registration Statement”
shall mean any registration statement that covers Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus
included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement,
and all exhibits to and all materials incorporated by reference in such registration statement.


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


“Underwritten Offering”
shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution
to the public.


 


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


 


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


 


Article II

REGISTRATIONS and Offerings


 


2.1             
Shelf Registration.


 


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


 






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


 


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


 


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


 






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


 


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


 






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2.2             
Piggyback Registration.


 


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


 






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


 


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


 


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


 


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


 






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2.4             
Block Trades; Other Coordinated Offerings. 


 


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


 


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


 


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


 


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


 


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


 






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Article III

COMPANY PROCEDURES


 


3.1             
General Procedures. In connection with any Shelf
and/or Shelf Takedown, the Company shall use its commercially reasonable efforts to effect such Registration to permit the sale of such
Registrable Securities in accordance with the intended plan of distribution thereof (and including all manners of distribution in such
Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted
by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto
the Company shall:


 


3.1.1       
prepare and file with the Commission a Registration Statement with respect to such Registrable Securities and use its commercially
reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered
by such Registration Statement have ceased to be Registrable Securities;


 


3.1.2       
prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements
to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered
on such Registration Statement (including warrants on an as-exercised basis) or any Underwriter of Registrable Securities or as may be
required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or
rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration
Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the
Prospectus;


 


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


 


3.1.4       
prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the
Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions
in the United States as any Holder of Registrable Securities included in such Registration Statement (in light of their intended plan
of distribution) may reasonably request (or provide evidence that the Registrable Securities are exempt from such registration or qualification)
and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or
approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any
and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in
such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however,
that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required
to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it
is not then otherwise so subject;


 






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3.1.5       
take all actions necessary to cause all such Registrable Securities to be listed on each national securities exchange on which
similar securities issued by the Company are then listed;


 


3.1.6       
provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective
date of such Registration Statement;


 


3.1.7       
advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance
of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any
proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain
its withdrawal if such stop order should be issued;


 


3.1.8       
at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration
Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange
Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce
the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of such Registrable Securities
or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);


 


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


 


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


 






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


 


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


 


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


 


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


 


3.1.15   
with respect to an Underwritten Offering pursuant to Section 2.1.4, use its commercially reasonable efforts to make available
senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by
the Underwriter in such Underwritten Offering; and


 


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


 


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


 






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


 


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


 


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



 


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


 


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


 






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


 


3.5             
Reporting Obligations. As long as any Holder shall
own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to use commercially
reasonable efforts to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required
to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders
with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the Commission
pursuant to the Electronic Data Gathering, Analysis and Retrieval System shall be deemed to have been furnished or delivered to the Holders
pursuant to this Section 3.5. The Company further covenants that it shall take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to sell Registrable Securities held by such Holder without
registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act
(or any successor rule then in effect). Upon the request of any Holder, the Company shall deliver to such Holder a written certification
of a duly authorized officer as to whether it has complied with such requirements.


 


Article IV

INDEMNIFICATION AND CONTRIBUTION


 


4.1             
Indemnification.


 


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


 






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


 


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


 






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4.1.4       
The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, director or controlling person or entity of such indemnified party and shall
survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to
make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s
or such Holder’s indemnification is unavailable for any reason.


 


4.1.5       
If the indemnification provided under Section 4.1 from the indemnifying party is unavailable or insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying
party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result
of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the
indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not
made by, in the case of an omission), or relates to information supplied by (or not supplied by in the case of an omission), such indemnifying
party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information
and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section
4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The
amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject
to the limitations set forth in Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or out-of-pocket
expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would
not be just and equitable if contribution pursuant to this Section 4.1.5 were determined by pro rata allocation or by any other
method of allocation, which does not take account of the equitable considerations referred to in this Section 4.1.5. No person
or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
pursuant to this Section 4.1.5 from any person or entity who was not guilty of such fraudulent misrepresentation.


 


Article V

MISCELLANEOUS


 


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


 






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5.2             
Assignment; No Third Party Beneficiaries.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


5.6             
Amendments and Modifications. Upon the written
consent of (a) the Company and (b) the Holders of at least a majority on the basis of voting power of the then outstanding Registrable
Securities (including warrants on an as-exercised basis), compliance with any of the provisions, covenants and conditions set forth in
this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however,
that notwithstanding the foregoing, any amendment hereto or waiver hereof shall also require the written consent of the Sponsor so long
as the Sponsor and its affiliates hold, in the aggregate, at least fifty percent (50%) of the outstanding shares of Common Stock of the
Company owned by the Sponsor and its affiliates as of the Closing; provided, further, that notwithstanding the foregoing,
any amendment hereto or waiver hereof shall also require the written consent of each Embark Holder, so long as such Embark Holder and
its affiliates hold, in the aggregate, at least five percent (5%) of the outstanding shares of Common Stock of the Company owned by such
Holder and its affiliates as of the Closing; and provided, further, that any amendment or supplement hereto or waiver hereof
that affects any Holder, solely in its capacity as a holder of securities of the Company, in a manner that is adverse as compared to and
materially different from other Holders (in such capacity) shall require the consent of the Holder(s) so adversely affected. No course
of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company
in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company.
No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise
of any other rights or remedies hereunder or thereunder by such party.


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


[SIGNATURE PAGES FOLLOW] 


 






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


 


	 	COMPANY:
	 	[•]
	 	a
    Delaware corporation
	 	By:	       
	 	Name:	 
	 	Title:	 
	 	 	 
	 	HOLDERS:
	 	 
	 	[•]
	 	 
	 	By:	     
	 	Name:	 
	 	Title:	 
	 	 
	 	By:	      
	 	Name:	 
	 	Title:	 
	 	 	 
	 	[•]
	 	 
	 	By:	      
	 	Name:	 
	 	Title:	 



 


[Signature Page to Registration
Rights Agreement]


 






     


     


    

 





Exhibit A


 


REGISTRATION RIGHTS AGREEMENT JOINDER


 


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


 


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


 


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


 


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


 


	 	 
	 	Signature of Stockholder
	 	 
	 	Print Name of Stockholder
	 	Its:
	 	 
	 	Address: 
	 	 
	 	 



 


	 


Agreed and Accepted as of


	 	 	 
	____________, 20__
	[________]
	 	 
	By:	 	 
	Name:
	Its: