Exhibit 10.1


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


AGREEMENT
AND PLAN OF MERGER


 


by and
among


 


 


RED
CAT HOLDINGS, INC.


TEAL ACQUISITION CORP.,


TEAL DRONES,
INC.


AND


 


 


THE STOCKHOLDERS
OF TEAL DRONES, INC.


 


 


Dated
as of July __, 2021


 


 


 


 


 


 


 




    	 



    	 



    

 


  


 


AGREEMENT
AND PLAN OF MERGER


 


THIS
AGREEMENT AND PLAN OF MERGER, dated as
of July , 2021 (this “Agreement”), is entered
into by and among Red Cat Holdings, Inc., a Nevada
corporation (the “Parent”), Teal Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent
(the “Purchaser”) and Teal Drones, Inc., a Delaware corporation (the
“Company”) and the undersigned shareholders
of the Company (collectively, the “Stockholders”).
Parent, Purchaser, Company and the Stockholders are each a “party”
and together are “parties” to this Agreement.
All capitalized terms used in this Agreement shall have the meanings
assigned to such terms in Section
8.4 or as otherwise defined elsewhere in this Agreement,
unless the context clearly indicates otherwise.


 


RECITALS


 


WHEREAS,
the Company is party to certain
contracts, approvals, rights and technology as well as certain licenses and assets,
including the right to sell
unmanned aerial vehicles (drones) and related services to certain
agencies and instrumentalities of the United States government;


 


WHEREAS,
Company has issued shares of its capital stock, par value $0.00001 per
share (consisting of Common Stock (the “Company Common Stock”),
Series Seed Exchange Preferred Stock (the “Company Series Seed Preferred Stock”), Series Seed Prime Exchange Preferred
Stock (the “Company Series Seed Prime Preferred Stock”),
Series A Exchange Preferred Stock (the “Company Series
A Preferred Stock”), Series
A-1 Exchange Preferred Stock (the “Company Series A-1 Preferred Stock”) and
Series A-2 Preferred Stock (the “Company Series A-2 Preferred Stock”), collectively the “Shares”)
and, upon closing of the transactions
contemplated hereby, Parent will issue, pursuant to the terms and
conditions of this Agreement, shares of Parent
Common Stock, par value $0.001 per share (the
“Parent Common Stock”)
and Parent Series C Convertible Preferred Stock, par value $0.001 per
share, (the “Parent Series C Preferred”,
and together with the Parent Common
Stock, the “Parent Shares”),
of Parent, at, for Parent Shares issued at
the Closing, the Agreed Parent Share Price, and,
for the Earn-Out Shares, at the Earn-Out Share
Price, all as set forth in this Agreement, without
interest, subject to any withholding of Taxes
required by applicable Law equal to a
total of up to $30 million, based
upon and subject to, in the case of the Earn
Out Amount, meeting certain milestones (the “Earn Out Conditions”)
upon achieving certain revenue goals for sale of
the Company’s Golden Eagle products and
services (the “Earn Out Amount”), all as set forth in this Agreement.


 


WHEREAS, the Stockholders
own ____% of the issued and outstanding capital
stock of the Company and desire to authorize and approve this Agreement and the transactions contemplated herein and agree to vote their
Shares for the transactions contemplated hereby;


 


WHEREAS,
upon the terms and subject to the conditions
set forth in this Agreement, the Purchaser will
be merged with and into the Company
(the “Merger”), with the Company
continuing as the Surviving Corporation (as such term
is defined below), in accordance
with the applicable provisions of the Delaware
General Corporation Law (the “DGCL”), whereby each issued and outstanding
Share (other than Shares to be cancelled
in accordance with Section 2.1(b)
and Dissenting Shares) will be converted into the right
to receive the Parent Shares;


 


WHEREAS,
the board of directors of the Company (the “Company Board”) has (i) determined that the transactions contemplated
by this Agreement, including the Merger, are fair to and in the best interests of the Company and its stockholders, (ii) approved,
adopted and declared advisable this Agreement and the transactions contemplated hereby, including the Merger and (iii) recommended
that the Company’s stockholders, and approve this Agreement and the Merger (the “Company Board
Recommendation”);


 


WHEREAS, the boards
of directors (or applicable committee thereof) of the Parent
and the Purchaser have, upon the terms and
subject to the conditions set forth herein, (i)   determined
that the transactions contemplated by this Agreement, including the Merger, are fair to and in the best interests of Parent and the
Purchaser and their respective stockholders and (ii)    approved,
adopted and declared advisable this Agreement
and the transactions contemplated hereby, including this Agreement
and the Merger;


 


WHEREAS,
as a condition to and inducement of the
Parent’s and the Purchaser’s willingness
to enter into this Agreement, simultaneously with
the execution of this Agreement, George Matus,
(a “Key Employee”) has accepted an
offer of employment with the Parent,
the Purchaser or an affiliate of Parent
or the Purchaser and has executed and delivered all Contracts and other documents required
by Parent and the Purchaser relating to such
employment, which employment and Contracts shall become effective from and after, and shall
be conditioned upon, the Closing;


 


WHEREAS,
as a condition to and inducement of the
Parent’s and the Purchaser’s willingness
to enter into this Agreement, simultaneously with
the execution of this Agreement, the Key
Employee has executed and delivered to the Parent and
the Purchaser Non-Competition and Non-Solicitation Agreement, dated as of the date
hereof (each, a “Non-Competition Agreement”); and


 


WHEREAS,
the Parent, Purchaser, Stockholders and the Company
desire to make certain representations, warranties, covenants and agreements
in connection with the Merger and also to prescribe
various conditions to the Merger;


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of
the mutual covenants and premises contained in this Agreement
and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged,
the parties to this Agreement agree as follows:


 


ARTICLE
1


THE MERGER


 


1.1
The Merger.


 


(a)
Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance
with the applicable provisions of the DGCL,
at the Effective Time, the Purchaser
shall be merged with and into the Company. As
a result of the Merger, the separate corporate
existence of the Purchaser
shall cease, and the Company shall continue as
the surviving corporation of the Merger
(the “Surviving Corporation”). The Merger shall have the effects set forth
in the applicable provisions of the DGCL. Without limiting
the generality of the foregoing, at the Effective
Time, all of the property, rights, privileges, immunities, powers and franchises of
the Company and the Purchaser shall vest
in the Surviving Corporation, and all of the debts,
liabilities and duties of the Company and the Purchaser
shall become the debts, liabilities and duties
of the Surviving Corporation.


 


(b)
At the Effective Time, the certificate
of incorporation of the Surviving
Corporation shall, by virtue of the Merger and
all other applicable action by Parent and the Surviving
Corporation, be amended so as to read
in its entirety in the form authorized and approved
by the Parent, until thereafter changed or amended
as provided therein or by applicable Law. In
addition, the bylaws of the Surviving Corporation shall
be amended so as to read
in their entirety in the form set forth authorized
and approved by the Parent, until thereafter
changed or amended as provided therein,
in the certificate of incorporation of the Surviving
Corporation or by applicable Law.


 


(c)
The directors of the Purchaser immediately prior to the Effective
Time shall, from and after the Effective Time, become
the directors of the Surviving Corporation, each to hold office
in accordance with the certificate of incorporation
and bylaws of the Surviving Corporation until their
respective successors shall have been duly elected,
designated or qualified, or until their
earlier death, resignation or removal in accordance
with the certificate of incorporation and bylaws
of the Surviving Corporation. The officers of the Purchaser
immediately prior to the Effective Time, from
and after the Effective Time, shall continue as the officers
of the Surviving Corporation, each to hold office
in accordance with the certificate of incorporation
and bylaws of the Surviving Corporation until
their respective successors shall have been
duly elected, designated or qualified, or until
their earlier death, resignation or removal
in accordance with the certificate
of incorporation and bylaws of the Surviving Corporation.


 


(d)
If at any time after the Effective Time,
the Surviving Corporation shall determine, in its sole discretion,
or shall be advised, that any deeds,
bills of sale, instruments of conveyance, assignments,
assurances or any other actions or things are
necessary or desirable to vest, perfect
or confirm of record or otherwise
in the Surviving Corporation its right,
title or interest in, to or under any of the
rights, properties or assets of either of the
Company or the Purchaser acquired or to be
acquired by the Surviving Corporation as a
result of, or in connection with, the Merger
or otherwise to carry out this Agreement,
then the officers and directors of the Surviving
Corporation shall be authorized to execute
and deliver, in the name and on behalf
of either the Company or the Purchaser,
all such deeds, bills of sale, instruments of conveyance,
assignments and assurances and to take and do, in the name
and on behalf of each of such
corporations or otherwise, all such other actions and things as
may be necessary or desirable to vest,
perfect or confirm any and all right, title
or interest in, to and under such
rights, properties or assets in the Surviving
Corporation or otherwise to carry out
this Agreement. 


 


1.2
Closing and Effective Time of the Merger.
The closing of the Merger (the “Closing”) will take place at
10:00 a.m., New York City time, on a date
to be specified by the parties (the “Closing
Date”), such date to be no later than the second Business
Day after satisfaction or waiver of all
of the conditions set forth in Article
6 (other than those conditions that by their
terms are to be satisfied at the Closing,
but subject to the fulfillment or written
waiver (where permitted by applicable Law) of those conditions
at the Closing), at the Law Office of
Harvey Kesner, 500 Fifth Avenue, Suite 938,
NY, NY 10036, unless another time, date or place
is agreed to in writing by the parties
hereto. On the Closing Date, or on such other
date as Parent and the Company may agree to in writing,
the Purchaser and the Company shall cause an appropriate
certificate of merger (the “Certificate
of Merger”) to be executed
and filed with the Secretary of State of
the State of Delaware in accordance
with the relevant provisions of the DGCL and
shall make all other filings or recordings required
under the DGCL. The Merger shall become effective at the date and
time the Certificate of Merger shall have been
duly filed with the Secretary of State of the
State of Delaware or such other date and time
as is agreed upon by the parties
and specified in the Certificate of Merger
(such date and time, the “Effective
Time”).


 


ARTICLE
2


MERGER
CONSIDERATION: CONVERSION OF SECURITIES IN THE MERGER


 


2.1
Fixed Consideration.(i) In
consideration of the Merger
and the other obligations of Company and Stockholders
as set forth in this
Agreement, Parent shall pay or otherwise provide to Stockholders
the following consideration (the “Purchase Price”
or “Merger Consideration”):


 


(a)
Closing Consideration.On
the Closing Date, Purchaser shall deliver to
Stockholders in accordance with Section 2.2 hereof:
Fourteen Million Dollars (US$14,000,000), (the “Closing Merger
Consideration”) payable in shares
of Parent Common Stock and Parent Series C Stock
(the “Stock Consideration”) minus (A) the amount
required to be paid under a senior secured
promissory note in favor of Decathlon (the “Secured
Note”) to be issued at closing by Parent
in the amount of up to Two Million Dollars ($2,000,000),
(B) the value of the shares of Parent
Common Stock to be issued to Decathalon
pursuant to that certain Consent Agreement, dated as of even
date with this Agreement, between Decathalon and the Company;
(C) any other indebtedness of the Company, and (D) any
Working Capital deficit of the Company, calculated at the Closing Date
VWAP (the “Agreed Parent Share Price”). The Parent Series C Preferred
shall have the rights, privileges and preferences as set forth in the form of the
Series C Preferred Certificate of Designation
attached hereto as Exhibit 2.1(a), (the “Certificate
of Designation”) which Certificate
of Designation Parent shall have filed with
the Secretary of State of the State
of Nevada prior to the Closing Date and which
shall be effective prior to the Closing, and shall
be substantially equivalent to Common Stock
in all respects other than the limitations on
voting and conversion required in order to conform
with, and shall automatically convert into Common Stock of Parent
upon the approval of NASDAQ
(the “NASDAQ Approval”), to the issuance of in excess
of in excess of 19.99% of the outstanding Parent
Common Stock in accordance with NASDAQ Rule
5635(d).


  


(b)
Earn-Out Consideration.(i)Following the Closing Date, the Parent
shall deliver to Stockholders in accordance
with Section 2.1(b)(iii) hereof, additional shares of Parent
Common Stock (the “Earn-Out Shares”) as
follows, calculated for Golden Eagle sales and service income (i.e.,
net revenues calculated in accordance with GAAP)
received by the Company during the twenty-four
month period beginning on the first day after
the Closing Date (the “Earn-Out Period”) with a gross
margin of at least 30% (“Qualified
Sales”), as follows:


 


		·	A total of $16,000,000 in Earn
Out Shares if aggregate Qualified Sales during the Earn-Out
Period shall have equaled or exceed
$36 million; or



		·	A total of $10,000,000 in Earn
Out Shares if Qualified Sales during the Earn-Out
Period shall have equaled at least $24 million but less
than $36 million; or



		·	A total of $ 4,000,000 in Earn
Out Stares if Qualified Sales during the Earn-Out
Period shall have equaled at least $18 million but less
than $24 million.



 


(ii)
the Parent shall calculate the Qualified
Sales for the Earn-Out Period and deliver such amount to the Stockholders
within thirty (30) days of the end of the Earn-Out
Period (the “Earn-Out Determination Date”). Unless a majority in
interest of the Stockholders
notify the Parent in writing (the “Qualified
Sales Dispute Notice”) within ten (10) business days after receipt of the Qualified
Sales amount that the Stockholders disagree with the Qualified
Sales Amount, the Qualified Sales amount delivered to the Stockholders
shall be conclusive and binding. The Qualified
Sales Dispute Notice shall include reasonable details of the disagreement
and the reasons therefor. In the event
Stockholders provide the Parent with any Qualified Sales Dispute Notice, the Parent
shall not be required to pay or issue
any Earn-Out Shares pending resolution of such dispute.
The Parent and the Stockholders shall attempt
to resolve their differences with respect to the Qualified
Sales within ten (10) business days after the Parent’s receipt of
the Qualified Sales Dispute Notice. Any disputes regarding the Qualified
Sales not resolved by the Parent and
the Stockholders within such 10-day period will be resolved
by a national accounting firm (the “Arbitrator
Accounting Firm”). The Arbitrator Accounting Firm’s determination of the Qualified
Sales amount shall be conclusive and binding upon the parties.
The fees and expenses of the Arbitrator Accounting Firm in acting under
this Section shall be borne by the party that
the Arbitrator Accounting Firm determines to be least
correct (in net dollar terms) in its determination of the Qualified
Sales.


 


(iii)
the Parent shall issue the Earn Out Shares
within 30 days following either the Earn-Out
Determination Date or the date of resolution
of any dispute regarding Qualified Sales pursuant
to Section 2.1(b)(ii) above, at the VWAP on
the last day of the Earn- Out Period (the “Earn-Out
Share Price”) that Qualified Sales equal or exceed the amounts
set forth herein. Qualified Sales shall be determined on an
aggregate basis achieved during the Earn-Out Period. For the absence
of doubt only one payment shall be made for each level
of Qualified Sales, for example, in the event
the Qualified Sales are $20,000,000 within 9
months and $30,000,000 million at the end
of the Earn-Out Period, a total payment of $10,000,000
in Shares shall be due to be paid
in total. . Payment of the Earn-Out
Shares shall be made to the Stockholders as
set forth on Schedule 2.1(b).


 


(c) Working
Capital Adjustment.  The Company shall prepare
and deliver to the Parent on the Closing Date a statement
setting forth its calculation of estimated Closing Working
Capital,) (the “Closing Statement”) and only items set forth in the
Closing Statement shall be used to calculate
the Closing Working Capital. Within sixty (60)
days after the Closing Date, Parent shall prepare
and deliver to Stockholders an updated
Closing Statement setting forth its actual
calculation of the Closing Working Capital as of the Closing
Date (the “Final Closing Statement”). If the Working
Capital of the Company as of the Closing Date is
a positive number, the Purchase Price shall not
be increased. If the Working Capital of
the Company as of the Closing Date is a negative
number, the Purchase Price shall be decreased
dollar for dollar by the amount of
the Working Capital Adjustment and shall be
payable by Stockholders through a decrease in
the Escrow Shares which shall be valued at the Agreed
Parent Share Price. As used herein: “Closing Working Capital” means (a) Current Assets, less (b) Current Liabilities,
determined as of the close of business on
the Closing Date; “Current Assets” means the current assets
of the Company on the Closing Date and “Current Liabilities” means the current
liabilities of the Company, in each
case in accordance with GAAP. Unless a majority
in interest of the Stockholders notify
Parent in writing (the “Dispute Notice”) within ten (10) business
days after receipt of the Final Closing Statement
that Stockholders disagree with the Closing Working Capital set forth in the Final
Closing Statement, the Closing Working Capital shall be conclusive and binding
on Company, Stockholders, Purchaser and Parent. The Dispute Notice shall include reasonable
details of the disagreement and the reasons
therefor. In the event Stockholders provide
Parent with any Dispute Notice, Stockholders shall not be required to pay the
Parent with respect to the Working Capital
Adjustment pending resolution of such dispute. Parent and Stockholders shall
attempt to resolve their differences with respect to the Closing Working
Capital within ten (10) business days after Parent’s receipt of
the Dispute Notice. Any disputes regarding the Closing Working
Capital not resolved by Parent and
Stockholders within such 10-day period will be resolved by a national
accounting firm (the “Working Capital Arbitrator Accounting Firm”). The
Working Capital Arbitrator Accounting Firm’s determination of the Closing Working
Capital shall be conclusive and binding upon the parties.
The fees and expenses of the Working Capital Arbitrator Accounting Firm in acting
under this Section shall be borne by the party that the Arbitrator
Accounting Firm determines to be least correct (in net dollar
terms) in its determination of the Closing Working
Capital.


 


(d)
NASDAQ Approval.Notwithstanding anything herein to the contrary,
in no event shall the Purchase Price and Earn-Out Shares
issuable pursuant to this Section 2.2 exceed
19.99% of the issued and outstanding Common
Stock of the Company, as calculated on the Closing
Date and the Earn-Out Date, prior to approval.


 


(e)
Escrow Shares. On the Closing Date, Purchaser shall deliver to the Escrow
Agent Fifteen (15%) percent of the Stock Consideration
(the “Escrow Shares”) to be held in escrow
in accordance with the Escrow Agreement.


 


2.2
Conversion of Securities.
At the Effective Time, by virtue of the
Merger and without any action on the part of
the Purchaser, the Company or the holders
of any of the following securities:


 


(a)
Conversion of Company Common Stock.(i)
Conversion of Company Common Stock.Each
holder of Shares of Company
Common Stock issued and outstanding immediately prior to the Effective
Time, other than Shares of Company
Common Stock to be cancelled in accordance
with Section 2.2(b) and Dissenting Shares, shall be converted
into the right to receive the Closing Merger
Consideration set forth opposite such holder’s name on Schedule 2.2 attached
hereto, payable to the holder, without interest, subject to any
withholding of Taxes required by applicable
Law, upon surrender of the certificate formerly
representing such Shares of Company Common Stock
in accordance with Section 2.3 (provisions with
respect to Restricted Shares are also
addressed in Section 2.5(b)).


 


(ii)
Conversion of Company Series Seed Preferred Stock.Each
holder of Shares
of Company Series Seed Preferred Stock issued and outstanding immediately prior to the Effective
Time, other than Dissenting Shares, shall be converted into the
right to receive the Closing Merger Consideration
set forth opposite such holder’s name on Schedule
2.2 attached hereto, payable to the holder, without
interest, subject to any withholding of Taxes
required by applicable Law, upon surrender
of the certificate formerly representing such Shares
of Company Series Seed Preferred Stock in accordance
with Section 2.3.


 


(iii)
Conversion of Company Series Seed Prime Preferred Stock.
Each holder of Shares of Company Series Seed
Prime Preferred Stock issued and outstanding immediately prior to the Effective Time,
other than Dissenting Shares, shall be converted
into the right to receive the Closing Merger Consideration
set forth opposite such holder’s name on Schedule
2.2 attached hereto, payable to the holder, without
interest, subject to any withholding of Taxes
required by applicable Law, upon surrender of
the certificate formerly representing such Shares of Company
Series Seed Prime Preferred Stock in accordance with Section 2.3.


 


(iv)
Conversion of Company Series A Preferred
Stock. Each holder of Shares of Company
Series A Preferred Stock issued and outstanding immediately prior to the Effective
Time, other than Dissenting Shares, shall be converted into the right
to receive the Closing Merger Consideration
set forth opposite such holder’s
name on Schedule 2.2 attached hereto, payable to the holder,
without interest, subject to any withholding of Taxes
required by applicable Law, upon surrender
of the certificate formerly representing such Shares
of Company Series A Preferred Stock in accordance
with Section 2.3.


 


(v)
Conversion of Company Series A-1 Preferred
Stock.Each holder of Shares of
Company Series A-1 Preferred Stock issued and outstanding immediately prior to the Effective
Time, other than Dissenting Shares, shall be converted into the
right to receive the Merger Consideration
set forth opposite such holder’s
name on Schedule 2.2 attached hereto, payable to the holder,
without interest, subject to any withholding of Taxes
required by applicable Law, upon surrender
of the certificate formerly representing such Shares
of Company Series A-1 Preferred Stock in accordance
with Section 2.3.


 


(vi)   Conversion
of Company Series A-2 Preferred
Stock.Each holder of Shares
of Company Series A-2 Preferred Stock issued and outstanding immediately prior to the Effective
Time, other than Dissenting Shares, shall be converted into the
right to receive the Closing Merger
Consideration set forth opposite such holder’s name on Schedule
2.2 attached hereto, payable to the holder, without
interest, subject to any withholding of Taxes
required by applicable Law, upon surrender
of the certificate formerly representing such Shares
of Company Series A-2 Preferred Stock in accordance
with Section 2.3.


 


(vii) Cancellation
of Treasury Stock and Parent-Owned Stock. All Shares
that are held in the treasury of the Company,
and all Shares owned of record by Parent
or any of its direct or indirect
wholly-owned Subsidiaries, including the Purchaser, shall be cancelled
and shall cease to exist, with no payment being
made with respect thereto.


 


(viii) Purchaser
Common Stock. Each share of common
stock, par value $0.001 per share, of
the Purchaser (the “Purchaser Common Stock”)
issued and outstanding immediately prior to the Effective
Time shall be converted into and become
one newly and validly issued, fully paid and nonassessable share of common
stock of the Surviving Corporation.


 


		2.3	Payment for Securities; Surrender of Certificates.



 


(a)
Procedures for Surrender.As promptly as practicable after the Effective
Time, the Parent shall cause its transfer agent
(the “Transfer Agent”) to mail to each holder of record
of a certificate or certificates that represented Shares
(the “Certificates”) or non- certificated Shares represented by
book-entry (“Book-Entry Shares”),
in each case, which Shares were converted into the right to receive
the Merger Consideration at the Effective Time
pursuant to this Agreement: (i) a letter of
transmittal, which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates
to the Transfer Agent, and shall otherwise be
in such form and have such other provisions as the Purchaser
or the Transfer Agent may reasonably specify and (ii)
instructions for effecting the surrender of
the Certificates or Book-Entry Shares in exchange
for payment of the Merger Consideration. Upon surrender of Certificates
and Book-Entry Shares for cancellation to the Transfer
Agent, and upon delivery of
a letter of transmittal, duly executed and
in proper form, with respect to such Certificates
or Book-Entry Shares, the holder of such Certificates
or Book- Entry Shares shall be entitled to receive
the Merger Consideration for each Share formerly represented
by such Certificates and for each Book-Entry Share.
Any Certificates and Book- Entry Shares so surrendered
shall forthwith be cancelled. If issuance of
the Merger Consideration is to be made to a Person other
than the Person in whose name any surrendered Certificate is registered,
it shall be a condition precedent of payment
that the Certificate so surrendered
shall be properly endorsed or shall be
otherwise in proper form for
transfer, and the Person requesting such payment shall
have paid any transfer and other similar Taxes required
by reason of the issuance of the Merger
Consideration to a Person other than the registered
holder of the Certificate so surrendered
and shall have established to the satisfaction of the Surviving
Corporation that such Taxes either have been paid or are
not required to be paid. Issuance of the Merger
Consideration with respect to Book-Entry Shares
shall only be made to the Person in whose
name such Book-Entry Shares are registered. Until surrendered as contemplated hereby, each Certificate or Book-Entry
Share shall be deemed at any time after the
Effective Time to represent only the right
to receive the Merger Consideration as contemplated
by this Agreement, without interest thereon.


 


(b) Transfer
Books; No Further Ownership Rights in Shares.
At the Effective Time, the stock transfer
books of the Company shall be closed and
thereafter there shall be no further
registration of transfers of Shares
on the records of the Company.
From and after the Effective Time, the holders of Certificates and Book-Entry Shares outstanding immediately prior to the Effective
Time shall cease to have any rights with respect to such Shares except as otherwise provided for herein or by applicable Law. If,
after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be cancelled and
exchanged as provided in this Agreement.


 


(c)
Withholding Rights.Parent, the Purchaser,
the Surviving Corporation and the Transfer Agent shall
be entitled to deduct and withhold from the Merger
Consideration otherwise issuable pursuant to this Agreement such amounts that Parent,
the Purchaser, the Surviving Corporation or
the Transfer Agent is required to deduct
and withhold with respect to the making of such
payment under the Code or any other provision of applicable
Law. To the extent that amounts are so withheld,
such amounts shall be treated for all
purposes of this Agreement as having been paid
to the Person in respect of which such
deduction and withholding was made.


 


(d)
Lost, Stolen or Destroyed Certificates.In
the event that any Certificates shall have been lost, stolen
or destroyed, the Transfer Agent shall issue
in exchange for such lost, stolen or destroyed
Certificates, upon the making of an affidavit
of that fact by the holder thereof, the Merger
Consideration payable in respect thereof pursuant to Section
2.1(a) hereof; provided, however, that the Purchaser
may, in its sole discretion and as a condition
precedent to the payment of such Merger Consideration, require the owners
of such lost, stolen or destroyed
Certificates to deliver a bond in such
sum as it may reasonably direct as indemnity against
any claim that may be made against Parent, the Purchaser,
the Surviving Corporation or the Transfer Agent with
respect to the Certificates alleged to have
been lost, stolen or destroyed.


 


(e)
Transfer Taxes. If payment of the Merger Consideration is to be made
to any Person other than the registered
owner of the applicable Shares the amount of
any Transfer Taxes (whether imposed on the registered
owner or such other Person) payable on account of
the transfer will be deducted from the amount
of Merger Consideration to be issued to such
Person, unless satisfactory evidence of the payment
of such Transfer Taxes or exemption therefrom
is submitted to the Purchaser.


 


2.4 Dissenting
Shares. Notwithstanding anything to the contrary set forth in this Agreement,
no Shares issued and outstanding immediately prior to the Effective
Time and in respect of which appraisal rights
shall have been perfected in accordance with Section 262 of the DGCL
in connection with the Merger (collectively,
“Dissenting Shares”) shall be converted into a right
to receive that portion of the Merger Consideration
otherwise payable to the holder of such Dissenting
Shares as provided in Section 2.2, but shall
instead be converted into the right
to receive such consideration as may be determined
to be due with respect to such Dissenting Shares
pursuant to the DGCL. Each holder of Dissenting
Shares who, pursuant to the provisions of the DGCL,
becomes entitled to payment of the fair value
of such shares shall receive payment therefor in accordance
with the DGCL (but only after the value
therefor shall have been agreed upon or finally
determined pursuant to the DGCL). In the
event that any holder of Shares fails to make
an effective demand for payment or fails
to perfect its appraisal
rights as to its Shares or any Dissenting Shares
shall otherwise lose their status as Dissenting Shares, then any such shares shall
be converted into the right to receive the
Merger Consideration issuable pursuant to Section
2.2 in respect of such Shares as if such
Shares had never been Dissenting Shares, in
accordance with and following the satisfaction
of the applicable requirements and conditions set forth in Section
2.3.The Company shall give Parent
prompt notice (and in no event more than two
Business Days) of (i) any demand received
by the Company for appraisal of Shares (and shall
give Parent the opportunity to participate
in all negotiations and proceedings with respect
to any such demand) or (ii) any notice
of exercise by any
holder of Shares of appraisal rights
in accordance with the DGCL. The Company agrees that,
except with Parent’s prior written consent, it shall not voluntarily
make any payment or offer to make any
payment with respect to, or settle or offer
to settle, any such demand for appraisal or exercise
of appraisal rights.


 


		2.5	Treatment of Options; Restricted Stock;
Warrants.



 


		(a)	Treatment of Options.



 


(i)  
Immediately prior to the Effective Time, each outstanding and
unexercised option to purchase Shares (each, a “Company
Option”) that is vested, was granted under any
stock option plan (including, without limitation, the Company’s
2015 Equity Incentive Plan (the “2015 Plan”))
of the Company or any other equity plan or other
Contract (collectively, the “Company Stock Option Plans”),
shall be cancelled.


 


(ii)
The parties hereby acknowledge that the 2015 Equity Company’s 2015 Plan
shall automatically terminate and be of no further
force or effect with respect to any
awards thereunder or the right to receive any
shares or awards of Company stock immediately prior to the Effective
Time. No vested awards shall be continued following the Effective
Time and any unvested awards shall not be subject to any
vesting and shall be cancelled.


 


(iii)  
The Company shall, prior to the Effective Time, take
(or cause to be taken) any and all
action, and shall obtain all such consents, as may
be necessary to effect the foregoing
provisions of this Section 2.4(a).


 


		(b)	Treatment of Restricted Stock and Restricted
Stock Units.



 


(i)  
Each Share that, as of immediately
prior to the Effective Time, is subject
to a risk of forfeiture, a right
of repurchase in favor of the Company,
or to restrictions on transfers under the applicable
award agreement or Benefit Plan, that is outstanding
immediately prior to the Effective Time under any
Contract, instrument or plan set forth
in Section 3.2(b) of the Company Disclosure
Schedule (each, a “Restricted Share”)
shall be converted into the right to receive
the Merger Consideration, without interest, as provided in Section
2.1(a), such Merger Consideration to be paid to the holder
of such Restricted Share in accordance with
the vesting schedule applicable to such Restricted
Share, in each case subject to all
applicable withholding or other Taxes required by applicable
Law. The Company shall obtain, prior to the Closing, the consent from each holder
of a Restricted Share to the amendment
of the terms governing such Restricted Share
to permit the treatment set forth in this Section
2.4(b)(i) (unless such consent is not required under the terms
of the applicable Contract, instrument or plan).


 


(ii)
At the Effective Time, each award of restricted stock
units with respect to Company Common Stock
(“Company RSUs”) shall automatically terminate and be of no further force or effect with respect to any awards
thereunder or the right to receive any shares or awards of Company stock immediately prior to the Effective Time. No vested awards
shall be continued following the Effective Time and any unvested awards shall not be subject to any vesting and shall be
cancelled.


 


(iii)  
The Company shall, prior to the Effective Time, take (or
cause to be taken) any and all action, and shall
obtain all such consents, as may be necessary to effect
the foregoing provisions of this Section 2.4(b).


 


		(c)	Treatment of Company Warrants.



 


(i)  
At the Effective Time, each Company Warrant that has not otherwise
been exercised or expired shall be terminated
immediately upon the Effective Time. Neither the Surviving
Corporation nor Parent shall assume any Company Warrant that is outstanding
immediately prior to the Effective Time, whether or not then
exercisable. Following the Effective Time, no Company Warrant
shall remain outstanding and, except as set forth in the preceding
sentence, no holder of a Company Warrant shall
have the right to receive any consideration
from the Company, Parent or the Surviving Corporation
upon the exercise or conversion of such
Company Warrant or otherwise in respect thereof.


 


(ii)
The Company shall, prior to the Effective Time, take
(or cause to be taken) any and all
action, and shall obtain all such consents, as may
be necessary to cause the holders of all
Company Warrants that have not otherwise been exercised
or expired prior to the Effective Time to agree
to the treatment set forth in this Section 2.4(c)
(including, without limitation, providing any notices required under the Contracts relating
to such Company Warrants regarding the transaction
contemplated by this Agreement).


 


ARTICLE
3


REPRESENTATIONS
AND WARRANTIES OF THE COMPANY


 


Except
as set forth in the disclosure schedule delivered
by the Company to the Parent and the Purchaser
prior to the execution of this Agreement
(the “Company Disclosure Schedule”), which identifies items of disclosure
by reference to a particular Section or Subsection
of this Agreement (provided, however, that
any disclosure contained in any section
of the Company Disclosure Schedule relating to
one section of this Agreement shall be deemed
to be disclosed with respect to any other section
of this Agreement to the extent the relevance
of such disclosure to any such representation
and warranty is reasonably apparent from the
descriptions contained in the Company Disclosure Schedule
to the reader without the need to review
or consult additional documents), the Company hereby
represents and warrants to the Parent and the Purchaser
as follows:


 


3.1
Organization and Qualification; No Subsidiaries.


 


(a)
The Company is a corporation duly organized,
validly existing and in good standing under the Laws of
the State of Delaware
and has all requisite corporate
power and authority to own, lease and
operate its properties and assets and to conduct
its business as currently conducted. The Company
is duly qualified to do business and is in
good standing in each jurisdiction where the ownership,
leasing or operation of its properties
or assets or the conduct of its business
requires such qualification, except where any failure to be so qualified or in
good standing, individually or in the aggregate,
has not had a Company Material Adverse
Effect.


 


(b)
The Company has delivered or caused to be delivered or made available
to the Parent and the Purchaser accurate and
complete copies of the currently
effective certificate of incorporation of the Company (the “Company Charter”)
and bylaws of the Company (the “Company Bylaws”). The Company is
not in violation of the Company Charter or the
Company Bylaws.


 


(c)
The Company does not own or control,
directly or indirectly, any interest in any
other corporation, partnership, trust, joint venture,
limited liability company, association, or other business entity.


 


(d)
The Company neither owns nor has any relationship to nor has
any Company Contract been entered into with
any third party and Teal Drones, Inc., a Utah corporation,


 


		3.2	Capitalization.



 


(a)
The authorized capital stock of the Company consists of (i) 79,000,000 shares
of common stock, par value $0.00001 per share
(the “Company Common Stock”), of which, as of the date
of this Agreement and at the Effective Time,
there are 12,380,203 shares issued and outstanding (and no shares
of Company Common Stock held in treasury),
including no Restricted Shares and (ii) 81,520,284 shares
of preferred stock, par value $0.00001 per share
(the “Company Preferred Stock”), 7,600,000 of which are designated
as Series Seed Preferred Stock, par value $0.00001 per share, none of which
shares are issued and outstanding or reserved for future
issuance under Contract, 7,600,000 of which
are designated as the Series Seed Exchange Preferred Stock, $0.00001 par
value per share, 6,350,000 of which shares
are issued and outstanding and none of which
shares are reserved for future issuance under Contract, 5,454,545 of which
are designated as the Series Seed Prime
Preferred Stock, $0.0001 par value per share,
none of which shares are issued and
outstanding or reserved for future issuance under
Contract, 5,454,545 of which are designated as the Series
Seed Prime Exchange Preferred Stock, $0.0001 par value per share,
5,000,000 of which shares are issued and
outstanding and [none] of which shares are reserved
for future issuance under Contract,
19,295,998 of which are designated as the Series
A Preferred Stock, $0.0001 par value per share,
none of which shares are issued and outstanding or reserved
for future issuance under Contract,
19,295,998 of which are designated as the Series
A Exchange Preferred Stock, $0.0001 par value per
share, 16,782,000 of which shares are issued
and outstanding and none of which shares are reserved
for future issuance under Contract, 7,981,165 of which
are designated as the Series A-1 Preferred Stock, $0.0001 par
value per share, none of which
shares are issued and outstanding or reserved
for future issuance under Contract, 7,981,165 of which
are designated as the Series A-1 Exchange Preferred Stock, $0.0001 par
value per share, 5,040,990 of which shares are issued
and outstanding and none of which shares are reserved
for future issuance under Contract, and 5,337,344 of which
are designated as the Series A-2 Preferred Stock, $0.0001 par
value per share, 5,337,344 of which shares are issued and outstanding
and none of which shares are reserved
for future issuance under Contract. All of the outstanding shares
of Company Shares have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights.


 


(b)
As of the date of this Agreement,
the Company had no shares of Company
Common Stock or Company Preferred Stock reserved for
or otherwise subject to issuance,
except for 4,286,358 shares of Company
Common Stock reserved for issuance pursuant to the exercise
of outstanding Company Options under the Company Stock
Options Plans and 17,620,451 shares of Company
Preferred Stock reserved for issuance pursuant to the exercise of outstanding
Company Warrants all of which Options and Warrants will be cancelled
at the Effective Time as provided in Section
2.4 hereof.


 


(c)
Except for the Company Options and the Company
Warrants set forth in Section 3.2(b), as of the date of
this Agreement, there were no options, warrants
or other rights, agreements, arrangements or commitments of any
character (i) relating, convertible into or exchangeable for capital stock
of any other Equity Interests of the Company
or (ii) obligating the Company to issue,
acquire or sell any Equity Interests of
the Company. Since the close of business
on December 31, 2020, the Company has not issued
any shares of its capital stock or other Equity
Interests or securities convertible into
or exchangeable for capital stock or other Equity Interest
of the Company.


 


(d)
There are no outstanding obligations of the Company
(i) restricting the transfer of, (ii) affecting
the voting rights of, (iii) requiring the repurchase,
redemption or disposition of, or containing any
right of first refusal with respect to, (iv)
requiring the registration for sale of or
(v) granting any preemptive or antidilutive
rights with respect to, any Company Shares or other
Equity Interests in the Company.


 


		3.3	Authority.



 


(a)
The Company has all necessary corporate power and corporate authority to execute
and deliver this Agreement, to perform
its obligations hereunder and to consummate
the transactions contemplated hereby, including
the Merger. The execution and delivery of this Agreement by
the Company and the consummation by the Company
of the transactions contemplated hereby, including the Merger,
have been duly and validly authorized by all
necessary corporate action, and no other corporate proceedings on the part of
the Company and no stockholder votes or consents
are necessary to authorize this Agreement
or to consummate the transactions contemplated
hereby other than, (i) the Company Stockholder
Approval and (ii) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware
in accordance with the DGCL. The Company
Board, by resolutions duly adopted by
vote of those voting on such matters at a meeting duly called
and held, has, and as of the date of
this Agreement not subsequently rescinded
or modified in any way, (x) determined
that the transactions contemplated by this Agreement,
including the Merger, are fair to, and
in the best interests of, the Company and
its stockholders, (y) approved and declared advisable this Agreement
and the transactions contemplated hereby, including the Merger
and (z) resolved to recommend that the Company’s
stockholders approve the Merger and adopt this Agreement.
This Agreement has been duly authorized and validly executed and delivered by
the Company and, assuming due authorization,
execution and delivery by the Parent and the Purchaser,
constitutes a legally valid and binding obligation of
the Company, enforceable against the Company in accordance
with its terms (except as such enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar Laws affecting creditors’ rights generally and subject to the effect
of general principles of equity, whether
considered in a proceeding in equity or at
law).


 


(b)
The Company is not a party to any
stockholder rights plan or “poison pill”
agreement.


 


3.4 No
Conflict.None of the execution, delivery or performance of
this Agreement by the Company, the acceptance
for payment or acquisition of the Shares,
the consummation by the Company of the Merger
or any other transaction contemplated by this Agreement,
or the Company’s compliance with any of the provisions
of this Agreement will (with or without
notice or lapse of time,
or both): (a) subject to obtaining the Company
Stockholder Approval conflict with or violate any provision of the Company
Charter or Company Bylaws, (b) assuming that all consents, approvals, authorizations
and permits described in Section 3.5 have been obtained
and all filings and notifications described in Section
3.5 have been made and any waiting periods thereunder have terminated or expired,
conflict with or violate any Law
applicable to the Company or any of
its properties or assets or (c) require any
consent or approval under, violate, conflict
with, result in any breach of or any loss
of any benefit under, or constitute a
change of control or default under, or
result in termination or give to others any
right of termination, vesting, amendment, acceleration or cancellation
of, or result in the creation of a
Lien upon any of the properties or assets of
the Company pursuant to, any Contract, Company Permit
or other instrument or obligation to which
the Company is a party or
by which it or any of its properties
or assets may be bound or affected, except, with
respect to clauses (b) and (c), for any
such conflicts, violations, consents, breaches, losses, changes of control, defaults,
other occurrences or Liens which,
individually or in the aggregate, have not had a Company
Material Adverse Effect.


 


3.5
Required Filings and Consents.Assuming the accuracy
of the representations and warranties of the Parent
and the Purchaser in Section 4.4,
none of the execution, delivery or performance
of this Agreement by the Company, the consummation
by the Company of the Merger or any other transaction
contemplated by this Agreement, or the Company’s
compliance with any of the provisions of this Agreement will require (with or without
notice or lapse of time, or both) any
consent, approval, authorization or permit of, or filing
or registration with or notification to, any
Governmental Entity or any other Person, other
than (a) the filing of the Certificate
of Merger as required by the DGCL, (b) the receipt
of the Company Stockholder Approval, and (c) where
the failure to obtain such consents, approvals, authorizations
or permits of, or to make such filings, registrations
with or notifications to any Governmental Entity
or any other Person, individually or in the aggregate,
has not had a Company Material Adverse Effect.


 


		3.6	Permits; Compliance With Law.



 


(a)
The Company holds all licenses, permits, certificates, variances, exemptions, approvals and registrations
of any Governmental Entity required by applicable
Law or Order for the Company to own, lease
and operate its properties and assets, and
to conduct its business as currently conducted
(the “Company Permits”), except where the failure to have
any Company Permits, individually or in the aggregate, has not had a Company Material Adverse Effect. Section 3.6(a) of the
Company Disclosure Schedule contains an accurate and complete list of the Company Permits. The Company is and since January 1, 2019
has been in compliance with the terms of the Company Permits, and all of the Company Permits are valid and in full force and effect,
except where the failure to be in compliance with any Company Permits, or the failure of any Company Permits to be valid or in full
force and effect, individually or in the aggregate, has not had a Company Material Adverse Effect. No suspension, modification,
revocation or cancellation of any of the Company Permits is pending or, to the knowledge of the Company, threatened, except for any
such actions that, individually or in the aggregate, have not had a Company Material Adverse Effect.


 


(b)
The Company is not and has not been since
January 1, 2019 in conflict with, default under or violation
of, or is not being, or since January
1, 2019 has not been, investigated for, or
charged by any Governmental Entity with a violation
of, any Law applicable to the Company
or by which any property or asset of the Company
is bound or affected, except for any conflicts, defaults,
violations, investigations or charges that, individually or in the aggregate,
have not had a Company Material Adverse Effect. No
investigation or review by any Governmental Entity
with respect to the Company is pending or,
to the knowledge of the Company, threatened, except for such investigations or reviews,
the outcomes of which if determined
adversely to the Company, individually or in the aggregate,
have not had a Company Material Adverse Effect.


 


		3.7	Financial Information.



 


(a)
All of the unaudited financial statements of the Company delivered
to the Parent, being the balance sheets for
the years ended December 31, 2018, 2019 and
2020 and the related statements of income
and cash flows for the years then ended and the balance
sheet dated May 31, 2021 and the related statements
of income and cash flows for the five month
period then ended (A) have been prepared from, are
in accordance with, and accurately reflect the books and
records of the Company in all material respects,
(B) have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except as may
be indicated in the notes thereto or, in the
case of interim
financial statements, for normal and recurring year-end adjustments that are not material
in amount or nature and as may be permitted)
and (C) fairly present in all material respects the financial
position and the results of
operations and cash flows of the Company as
of the dates and for the periods referred to
therein.


 


3.8
Books and Records. The books and
records of the Company reflect only actual transactions.
The minute books of the Company, all of which
have been made available by the Company to the
Parent, contain materially complete and correct records of
all meetings and other corporate actions held or
taken by its stockholders and board of directors,
including the applicable committees of its board
of directors.


 


3.9 No
Undisclosed Liabilities. Except for those liabilities and obligations (a)
specifically reserved against or provided for in the unaudited
balance sheet of the Company as of May 31,
2021 or in the notes thereto, (b) incurred in the ordinary course
of business consistent with past practice since June 1, 2021, which,
individually or in the aggregate, have not had a Company
Material Adverse Effect or (c) incurred under this Agreement
or in connection with the transactions
contemplated hereby, including the Merger, the Company
has not incurred any liabilities or obligations
of any nature, whether or not accrued, absolute,
determined, determinable, fixed or contingent that would be required
to be recorded or reflected on a balance sheet
or the notes thereto under GAAP.


 


		3.10	Absence of Certain
Changes or Events.



 





Adverse Effect.


		(a)	Since May 31, 2021, there has not been any
Company Material



 


(b)
There has not been any action taken by the Company from
May 31, 2021 through the date of this
Agreement that, if taken during the period from
the date of this Agreement through the Effective
Time, would constitute a breach of Section
5.1.


 


		3.11	Employee Benefit Plans .



 


(a) Section
3.12(a) of the Company Disclosure Schedule sets
forth a complete and accurate list of each
Benefit Plan and each Benefit Agreement. With respect to each Benefit Plan and Benefit
Agreement, the Company has provided to the Purchaser
complete and accurate copies of (A) each such Benefit
Plan or Benefit Agreement, including any amendments thereto, and descriptions of all
material terms of any such plan that is not in writing,
(B) each trust, insurance, annuity or other
funding Contract related thereto, (C) all summaries and summary plan descriptions, including
any summary of material modifications, and any other notice
or description provided to employees, (D)
the three most recent financial statements and
actuarial or other valuation reports
prepared with respect thereto, (E) the most recently received IRS determination
letter, if any, issued by the IRS with
respect to any Benefit Plan and/or Benefit Agreement that is intended
to qualify under Section 401(a) of the Code,
(F) the three most recent annual reports on Form
5500 (and all schedules thereto) required to be filed
with the IRS with respect thereto and (G)
all other filings and material correspondence with any Governmental Entity (including any
correspondence regarding actual or, to the Company’s
knowledge, threatened audits or investigations) with respect to each
Benefit Plan and Benefit Agreement.


 


(b)
Each Benefit Plan and Benefit Agreement (and any related trust or other
funding vehicle) has been maintained and administered in all
material respects in accordance with its terms
and is in compliance in all material respects
with ERISA, the Code and all other applicable Laws. The Company has performed all material
obligations required to be performed by it under all
Benefit Plans and Benefit Agreements.


 


(c)
No Benefit Plan is, or any Commonly Controlled Entity sponsors, maintains,
contributes to, or has ever sponsored, maintained, contributed to, or has
any actual or contingent liability with respect to any
(i) single employer plan or other pension
plan that is subject to Section 302
or Title IV of ERISA or Section 412
of the Code, (ii) “multiple employer
plan” within the meaning of Section 413(c) of the Code,
(iii) defined benefit superannuation fund or is otherwise
a defined benefit plan (including, without limitation, any “multiemployer plan”
within the meaning of Section 3(37)
of ERISA) or (iv) multiple employer welfare
arrangement (within the meaning of Section 3(4)
of ERISA). No Benefit Plan or Benefit Agreement
provides health, medical, life insurance or other welfare benefits to any individual after retirement or other termination of
employment other than as required under Section 4890B of the Code, and no circumstances exist that could result in the Company
becoming obligated to provide any such benefits.


 


(d)
Each Benefit Plan that is intended to be qualified
under Section 401(a) of the Code has timely received a favorable
determination letter or is entitled to rely on a favorable
opinion letter from the IRS, in either
case, that has not been revoked and, to the knowledge
of the Company, no event or
circumstance exists that has adversely affected
or would reasonably be expected
to adversely affect such qualification or exemption.
Each trust established in connection with any Benefit Plan which is intended to be
exempt from federal income taxation under Section 501(a)
of the Code is so exempt, and no fact or event
has occurred that could reasonably be expected to adversely
affect the exempt status of any such trust.
There has not been any prohibited transaction
(within the meaning of Section 406 of
ERISA or Section 4975 of the Code) with
respect to any Benefit Plan.


 


(e)
None of the execution, delivery or performance
of this Agreement by the Company, the consummation
by the Company of the Merger or any
other transaction contemplated by this Agreement, or the Company’s compliance
with any of the provisions of this Agreement
will (either alone or in conjunction with any other event, including any termination
of employment on or following the Effective
Time) (i) entitle any Participant to any compensation
or benefit, (ii) entitle any employee of the Company
to resign or treat his or her employment as terminated,
(iii) accelerate the time of payment
or vesting, increase the amount of payment,
or trigger any payment or funding, of any
compensation or benefit or trigger any other
material obligation under any Benefit Plan or Benefit Agreement or (iv)
result in any breach or violation
of or default under or limit the Company’s right
to amend, modify or terminate any Benefit Plan
or Benefit Agreement.


 


(f)
Except as set forth in Section 3.12(f) of
the Company Disclosure Schedule, none of the
execution, delivery or performance of this Agreement
by the Company, the consummation by the Company
of the Merger or any other transaction contemplated
by this Agreement, nor the Company’s compliance
with any of the provisions of this Agreement
(alone or in conjunction with any other
event, including any termination of employment on or following
the Effective Time), will result in any “parachute
payment” under Section 280G of the Code.


 


(g)
No Participant is entitled to receive any gross-up, reimbursement
or additional payment by reason of any
Tax imposed under Section 409A or Section 4999 of the Code.


 


(h)
Each Benefit Plan, Benefit Agreement and other plan or Contract
maintained, established or entered into by the Company
that constitutes a nonqualified deferred compensation plan (within the meaning of Section
409A of the Code) has been (i) operated in good faith
compliance with Section 409A of the Code or an
available exemption therefrom from January 1, 2005 through
December 31, 2008 (to the extent in existence
during such period) and (ii)    maintained
and operated, since January 1, 2010 (to the extent in existence
since such date), in documentary and operational compliance
with Section 409A or the Code or an available exemption therefrom. No compensation has
been or would reasonably be expected to
be includable in the gross income of any
“service provider” (within the meaning of Section 409A of the Code) of
the Company as a result of the operation
of Section 409A of the Code.


 


(i)  
The Company has not ever maintained, sponsored, participated
in or contributed to, any Benefit Plan or Benefit
Agreement subject to the Laws of any jurisdiction
outside of the United States, and no Benefit
Plan or Benefit Agreement provides compensation or benefits
to any Participant subject to the Laws of any
jurisdiction outside of the United States.


 


(j)
The Company is not a party to any
Contract or plan that has resulted or could
result, separately or in the aggregate, in the payment of any
amount that will not be fully deductible as a result
of Section 162(m) of the Code (or any corresponding provision of any
other applicable Tax Laws).


 


		3.12	Labor and Other Employment Matters.



 


(a)
The Company is in compliance in all material
respects with all applicable Laws respecting labor, employment, classification of
employees, immigration, fair employment practices, terms and conditions of employment,
workers’ compensation, occupational health and safety, plant closings, compensation
and benefits and wages and hours. Section 3.12(a) of
the Company Disclosure Schedule sets forth the
names and current annual salary rates or current
hourly wages, bonus opportunity, hire date, credited service,
accrued vacation or paid-time-off, principal work location and
leave status of all present employees of
the Company and each such employee’s status as
being exempt or nonexempt from the application
of state and federal wage and hour Laws applicable
to employees who do not occupy a managerial, administrative,
or professional position.


 


(b)
The Company has paid in full all liabilities
then due and payable in respect of all
of its employees, including premium contributions, remittance and assessments for unemployment
insurance, employer health tax, income tax, workers’ compensation
and any liabilities under any other employment-related legislation, accrued wages,
taxes, salaries, commissions, bonuses, benefits, compensation and employee
benefit plan payments.


 


(c)
The Company is not and has not been
a party to any collective bargaining, employee association or works
council or similar Contract, and there are not, to the knowledge
of the Company, any union, employee association
or works council organizing activities concerning any employees of
the Company. There are no unfair labor
practice charges pending before the National Labor
Relations Board or any other Governmental Entity,
or any Actions which are pending or, to the
knowledge of the Company, threatened by or on
behalf of any employees of the Company. The Company
has not recognized (or done any act which
might be construed as recognition of) any trade union, whether
voluntarily or in terms of any statutory procedure
as set out in any applicable Law. Since January 1, 2018, there
have been no labor strikes, slowdowns, work stoppages, picketing, negotiated industrial actions
or lockouts pending or, to the knowledge of
the Company, threatened, against the Company.


 


(d) In
the three years prior to the date of
this Agreement, the Company has not effectuated
(i) a “plant closing” (as defined
in the Worker Adjustment and Retraining Notification Act (the “WARN Act”) or any
similar Law) affecting any site of employment or one or more
facilities or operating units within any
site of employment or facility of
the Company or (ii)     a “mass
layoff” (as defined in the WARN Act, or any
similar Law) affecting any site of employment or facility
of the Company.


 


(e)
Section 3.12e) of the Company Disclosure Schedule contains
a list of all natural persons that are independent contractors, consultants, agents or agency
employees currently engaged by the Company, along with the position, date
of retention and rate of remuneration for each
such individual. Except as set forth in Section
3.12(e) of the Company Disclosure Schedule, the Company
does not engage or retain any independent contractors, consultants, agents or agency
employees (that are natural persons).


 


(f) The
employees of the Company have been, and currently
are, properly classified under the Fair Labor Standards
Act of 1938, as amended, and under any
similar Law of any state or other
jurisdiction applicable to such employees. Any Persons now or heretofore
engaged by the Company as consultants or contract
laborers or independent contractors, rather than employees, have been properly
classified as such, are not entitled to any
compensation or benefits to which regular,
full-time employees are or were at the relevant
time entitled, were and have been engaged in accordance
with all applicable Laws, and have been treated accordingly and
appropriately for all Tax purposes.


 


		3.13	Contracts; Indebtedness.



 


(a)
Section 3.13(a) of the Company Disclosure Schedule sets
forth an accurate and complete list of each Contract to which the Company
is a party or which binds or affects
their respective properties or assets, and which falls within any of the following
categories:


 


(i)  
any Contract that limits, or that after the Effective
Time would limit, the freedom of the Company
or the Parent after the Effective
Time to compete in any line of business
or sell, supply or distribute
any product or service, in each case,
in any geographic area, or to hire any individual
or group of individuals;


 


(ii)
any Contract that relates to a partnership, joint venture or relationship
for joint marketing or joint development with
any other Person;


 


(iii)  
any Contract that involves future expenditures or receipts by the Company
of more than $20,000 in any one year period
(provided that, with respect to the Company’s
customer Contracts entered into in the ordinary course consistent with
past practice, this Section 3.13(a) shall only apply
to Contracts with Significant Customers);


 


(iv)  
any Contract that by its terms limits the payment
of dividends or other distributions by the Company;


 


(v) any Contract
that grants any right of first refusal
or right of first offer or
similar right with respect to any material
assets of the Company;


 


(vi) any
acquisition Contract with a purchase price
in excess of $20,000 or that
contains “earn-out” provisions or other contingent payment obligations; 


 


(vii)
any sale or divestiture Contract with a purchase
price in excess of $20,000 or that contains
ongoing indemnification obligations or other material
obligations;


 


(viii)
any Contract which is likely to involve consideration
of more than $20,000, in the aggregate, paid
to or received by, the Company over the remaining
term of such Contract (provided that, with respect to the Company’s
customer Contracts entered into in the ordinary course consistent
with past practice and on the form set forth
in Section 3.14(e)(i) of the Company Disclosure
Schedule, this Section 3.13(a) shall only apply
to Contracts with Significant Customers);


 


(ix)  
each Contract with a Governmental Entity that involved aggregate payments of
over $10,000 in 2020 or is reasonably likely
to involve aggregate payments of over $10,000
in 2021;


 


(x)
any Contract that contains obligations of the Company secured by a Lien
(other than a Permitted Lien), or provides
for interest rate or currency hedging arrangements, in each
case in connection with which the aggregate
actual or contingent obligations of the Company
under such Contract are greater than $20,000;


 


(xi)  
any Contract for the employment or engagement of any
officer, employee, consultant or other individual, including any Benefit Agreement,
providing for aggregate annual payments by the Company
in excess of $50,000;


 


(xii)
any Contract or plan, including
any stock option or equity plan, that may or
will increase, or accelerate the vesting
of, the benefits to any party by the occurrence
of any of the transactions contemplated by this
Agreement, or the value of any
of the benefits which will be calculated on
the basis of any of the transactions
contemplated by this Agreement;


 


(xiii)
any collective bargaining agreement or other Contract with any labor union
or severance or termination pay agreements, programs
or policies;


 


(xiv)
any Contract relating to indebtedness for borrowed money or any
financial guaranty in excess of $20,000 individually;


 


(xv)
any lease, sublease or other Contract with respect to the Leased
Real Property (“Lease Agreements”);


 


(xvi)
any Contract related to the development, distribution, or provision
of any Company Intellectual Property or Company
Offerings, and any Contract related to the support
or maintenance of any
Company Intellectual Property or Company Offerings that requires payment in excess
of $20,000 per year individually;


 


(xvii)
  any Contract that concerns protection
of, or imposes any obligations with respect
to use or disclosure of, Trade Secrets other than Contracts on Company’s
applicable standard form non-disclosure agreement without substantive changes;
and


 


(xviii)
any other “material contract” (as such term is defined
in Item 601(b)(10) of Regulation S-K of the SEC).


 


(b)
Each Contract of the type described in Section
3.13(a) and each Company Intellectual Property Contract (other than Unscheduled Outbound IP
Contracts and Unscheduled Inbound IP Contracts)
is referred to herein as a “Company
Material Contract.” Accurate and complete
copies of each Company Material Contract have been provided
or made available by the Company to Parent.


 


(c)
(i) Each Company Material Contract is a legally valid, binding and
enforceable obligation of the Company and, to the knowledge
of the Company, of the other party or parties thereto,
in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar Laws affecting creditors’ rights generally and subject, as to enforceability,
to general principles of equity, (ii) each Company
Material Contract is in full force and effect and, upon consummation
of the Merger, shall continue to be in full
force and effect without penalty, acceleration, termination, repurchase right or other
adverse consequence, (iii) the Company has in all
material respects performed the obligations required by it under
each Company Material Contract, (iv) the Company does not know of,
and has not received
notice of, any violation or default under (nor does there exist any condition which
upon the passage of time or the giving of notice
or both would cause such a violation
of or default under) any Company Material Contract
and (v) the Company has not received any
notice from any other party to any such Company Material
Contract, and otherwise has no knowledge, that such party intends to terminate,
or not renew, any such Company Material Contract.


 


(d)
There are no outstanding amounts payable to or receivable
from, or advances by the Company to, and
the Company is not otherwise a creditor
or debtor to, or party to any Contract or transaction
with, any holder of 5% or more of
the Company Common Stock or any
director, officer, employee or affiliate of the Company,
except for employment or compensation agreements or arrangements
with directors, officers and employees made in the ordinary course of business consistent
with past practice.


 


(e)
The Company provides services to its customers under the terms
of the warranties described in Section 3.13(e)(i)
of the Company Disclosure Schedule.The Company currently has not and
previously has not had, any material disputes concerning its services
with any of the 30 largest customers of the Company
in 2020, or for 2021 to date, based on amounts
paid or payable by such Person during each
such period (each, a “Significant Customer”),
and the Company has no knowledge of any material
dissatisfaction on the part of any such Significant
Customer or any facts or circumstances
that would lead to such material dissatisfaction.Each
Significant Customer is listed on Section
3.13(e)(ii) of the Company Disclosure Schedule. The Company has not received
written or, to the knowledge of the Company,
oral notice from any Significant Customer that such Significant Customer shall not
continue as a customer of
the Company or that
such Significant Customer intends to terminate
or materially modify existing Contracts with
the Company (or the Parent).


 


(f)
The Company currently has not or previously has not had
any material dispute concerning products and/or services provided by any supplier who
was one of the 15 largest suppliers of products
and/or services to the Company in 2020, or for
2021 to date, based on amounts paid or payable
by such Person during each such period (each, a “Significant Supplier”), and the Company has no knowledge of any
material dissatisfaction on the part of any Significant Supplier or any facts or circumstances that would lead to such material
dissatisfaction. Each Significant Supplier is listed on Section 3.13(f) of the Company Disclosure Schedule. The Company has
not received written or, to the knowledge of the Company, oral notice from any Significant Supplier that such Significant Supplier
shall not continue as a supplier to the Company or that such Significant Supplier intends to terminate or materially modify existing
Contracts with the Company (or the Parent).


 


		3.14	Litigation.



 


(a)
There is no suit, claim, action, proceeding, litigation, hearing, writ, injunction,
notice of violation, investigation, arbitration, mediation, audit, dispute or demand
letter (“Action”) pending or, to the knowledge of the Company,
threatened against or affecting the Company
(including by virtue of indemnification
or otherwise) or their respective
assets or properties, or any
executive officer or director of the Company
that, individually or in the aggregate, has had a Company
Material Adverse Effect. As of the date of this Agreement,
Section 3.14 of the Company Disclosure Schedule sets
forth a description of each current Action pending or, to the knowledge of the Company, threatened
against or affecting the Company (including
by virtue of indemnification or otherwise)
or its assets or properties, or any
executive officer or director of the Company
and relating to the Company or their service
to the Company.


 


(b)
Neither the Company nor any of
its assets or properties, is subject to any
order, writ, injunction, judgment, decree, decision, determination, ruling, subpoena, verdict, stipulation, award, settlement
agreement or similar Contract, arbitration award or
finding (“Order”) entered by or with
any Governmental Entity or, to the knowledge of the Company,
is subject to any continuing investigation by
any Governmental Entity.


 


3.15  
Environmental Matters.Except as has not had
a Company Material Adverse Effect: (a) the Company
is in compliance in all material respects with
all Environmental Laws and (b) during the period of the Company’s
use and occupancy, there have been no
releases of Hazardous Substances at the Leased Real
Property in quantities that are reasonably likely to result in remediation
costs to the Company pursuant to Environmental
Laws. The Company has not received written notice of any
Environmental Claims against the Company, nor has
the Company received any written notification of any
allegation of any actual or potential
responsibility for the disposal, release or
threatened release at any location of any
Hazardous Substance, in each case during the period of the Company’s
use and occupancy of the Leased Real
Property.


 


3.16 Intellectual Property.




 


(a)
Section 3.16(a) of the Company Disclosure Schedule contains a complete
and accurate list of all Company Offerings, including, where applicable, the title
and most current version, release number
and release date.


 


(b) Section
3.16(b) of the Company Disclosure Schedule contains a complete
and accurate list of all Registered Company Intellectual Property, in each case
listing, as applicable: (i) for each Patent, the name of
the current owner, the Patent number or application
serial number, the jurisdiction in which
it was filed, the filing and
issuance/grant dates, and the present
prosecution status, (ii) for each registered Trademark or Trademark application,
the name of the applicant/registrant, the jurisdiction
where the application/registration is located, the filing
date, the registration date, duration
of validity, application serial number or registration
number, the class of goods covered, and
the nature of the goods or services,
(iii) for each Domain Name, the name of
the registrant, the registration date, the expiration
date, the renewal date, the registrar name, and
contact information for the registrar, including its billing
agent, (iv) for each registered Copyright or Copyright application, the name of
the applicant/registrant, the jurisdiction
where the application/registration is located, the application or registration
number, and date of such application or registration and (v)
for each item of Registered Company Intellectual Property, any Person
other than the Company that has an ownership
interest therein and the nature of such
ownership interest. Section 3.16(b) of the Company Disclosure Schedule also
contains a complete and accurate list of all
material unregistered Trademarks used or held for use by the Company in connection
with the Company Offerings and all material
unregistered Copyrights included in the Company-Owned Intellectual Property.


 


(c)
For each item of Registered Company Intellectual Property: (i) all necessary registration,
maintenance and renewal fees due and payable
as of the Closing Date have been paid, (ii)
all documents necessary for obtaining, maintaining, perfecting, preserving and renewing
the Registered Company Intellectual Property required to be
filed as of the date hereof and as of the Closing
Date have been filed with the appropriate
Governmental Entity, (iii) each such item has been prosecuted in compliance
in all material respects with applicable Law
and (iv) there are no actions (including payment
of any fees or filing of any
documents) that must be taken within 90 days
following the Closing Date (or reasonable estimation thereof)
for purposes of obtaining, maintaining, perfecting,
preserving or renewing such Registered Company Intellectual Property.


 


(d)
None of the Company-Owned Intellectual Property is involved
in or subject to any pending or threatened
Action regarding ownership, use, invalidity
or enforceability, including any interference, reexamination, cancellation, or opposition
proceeding. There are no facts, circumstances,
or information to the Company’s knowledge, that
would be expected to: (i) render any
of the Intellectual Property Rights in the Company-Owned
Intellectual Property invalid or unenforceable or (ii)
adversely affect, limit, restrict, impair, or impede
the ability of the Surviving Corporation to
use and practice the Company Intellectual Property
upon the Closing in the same or similar manner as currently
used and practiced by the Company (and as currently planned
to be used and practiced). To the knowledge of the Company,
the Company-Owned Intellectual Property is subsisting and
in full force and effect, and has not been abandoned or passed
into the public domain.


 


(e) Section
3.16(e)(i) of the Company Disclosure Schedule contains a complete
and accurate list of all Contracts to which the Company
is a party, or by which the Company
is otherwise bound under which the Company has
granted or agreed to grant to any Third
Party any assignment, license, covenant not to sue, release, immunity or other
right with respect to Intellectual Property or Intellectual
Property Rights (“Outbound Intellectual Property Contracts”),
other than nondisclosure agreements, end
user license agreements, and terms of use entered into
in the ordinary course of business on Company’s
applicable standard form agreement without material changes (“Unscheduled Outbound IP Contracts”). Section
3.16(e)(ii) of the Company Disclosure Schedule contains a complete and accurate list of all Contracts to which the Company is a
party, or by which the Company is otherwise bound under which any Third Party has granted or agreed
to grant to the Company any assignment, license, covenant not to sue, release, immunity or other right with respect to Intellectual
Property or Intellectual Property Rights (“Inbound Intellectual Property Contracts”), other than employment
agreements between Company and its employees and non-exclusive, proprietary (i.e., non-Open Source) inbound Software licenses
generally commercially available on commercially reasonable terms with annual license fees under $10,000 in the aggregate that do
not relate to Intellectual Property or
Intellectual Property Rights incorporated into any Company Offering (“Unscheduled Inbound IP Contracts”).


 


(f)
Neither this Agreement nor the transactions
contemplated by this Agreement will violate or
result in the breach, material modification,
cancellation, termination or suspension of,
or acceleration of any payments under,
any Company Intellectual Property Contract. Following the Closing Date, the Surviving
Corporation will have and be permitted to exercise
all of the Company’s rights under all Company Intellectual Property Contracts (and
will have the same rights with respect to the
Intellectual Property and Intellectual Property Rights of Third Parties included in
the Company Intellectual Property) to the same extent
the Company would have had, and been able to
exercise, had the transactions contemplated
by this Agreement not occurred, without payment
of any additional amounts or consideration other than
ongoing fees, royalties or payments that the
Company would have been required
to pay anyway even if such transactions had
not occurred.


 


(g)
Neither this Agreement nor the transactions
contemplated by this Agreement, nor any Contracts
to which the Company is a party
(including the assignment (if any) to the Surviving
Corporation upon or at any time following
Closing, by operation of law
or otherwise, of any such Contracts), will result
in (i) any Third Party being granted the right
to exercise any rights to or access to, or the
placement in or release from escrow, any Intellectual
Property, (ii) violation, breach, material modification, cancellation, termination or suspension
of, or acceleration of any payments under,
the Company Intellectual Property Contracts or (iii)
Parent or any of its affiliates or the
Surviving Corporation (x) granting or being required
to grant to any Third Party any license, covenant
not to sue, immunity or other right with respect
to any Intellectual Property or Intellectual Property
Rights, (y) being bound by, or subject to, any
non- compete or other restriction on the operation
or scope of their respective businesses or (z)
being obligated to pay any amounts, or offer
discounts to any Person, except, with respect
to Surviving Corporation in each case (x)-(z),
to the same extent that the Company
would have been so obligated even if such
transactions had not occurred.


 


(h)
The Company solely and exclusively owns all right, title and interest in and to (including the
sole right to enforce) the Company-Owned
Intellectual Property, free and clear of any and all
Liens, and have not (i) licensed any such Company-Owned
Intellectual Property, or any other Company Intellectual Property, to any
Third Party, except pursuant to an Outbound Intellectual
Property Contract listed in Section 3.16(e)(i) of the Company
Disclosure Schedule or an Unscheduled Outbound IP Contract
or (ii) exclusively licensed any such Company-Owned Intellectual Property, or any
other Company Intellectual Property, to any Third
Party. The Company is listed in the records
of the appropriate Governmental Entity as the sole owner of each item of Registered Company
Intellectual Property. All Licensed Company Intellectual Property is licensed by the Company pursuant to a valid Inbound
Intellectual Property Contract listed in Section 3.16(e)(i) for use in the manner in which it is currently used by the
Company. All Company Intellectual Property is either Company-Owned Intellectual Property or Licensed Company Intellectual
Property.


 


(i)
The Intellectual Property and Intellectual Property Rights included in the
Company-Owned Intellectual Property and Licensed Company Intellectual Property include all
of the Intellectual Property and Intellectual Property Rights that
are necessary to enable the Surviving Corporation
to conduct the business of the Company
as currently conducted, and, immediately following the Closing, the Surviving
Corporation will own or have (pursuant to the Inbound
Intellectual Property Contracts) the same rights that the Company
had immediately prior to the Closing with respect
to such Intellectual Property and Intellectual Property Rights.


 


(j)
The Company has taken steps consistent with industry standards, and in any
event no less than reasonable steps, to safeguard
and maintain the secrecy and confidentiality of, and its proprietary
rights in, all Trade Secrets provided by Third
Parties for which the Company has an obligation
of confidentiality and any other Trade Secrets that are included in the Company Intellectual
Property. The Company has not authorized the disclosure of any
Trade Secret included in the Company Intellectual Property, nor has
any such Trade Secret been disclosed to a Third
Party by the Company other than pursuant to a valid
and enforceable confidentiality agreement with respect thereto. To the knowledge of Company,
no Person has misappropriated, made any unauthorized disclosure of, or
breached its confidentiality obligations with respect to any
Trade Secret included in the Company Intellectual Property.


 


(k)
Each current and former employee, officer, consultant and contractor of the
Company (“Company Personnel”), who is or has
been involved in the development of any Company-Owned
Intellectual Property or Company Offerings, has executed and delivered to the Company
applicable employment or contractor agreements, non-disclosure agreements, and assignment
agreements that assign to the Company all Intellectual Property and Intellectual Property
Rights developed in connection with such Person’s
work for the Company, which applicable documents
contain contractual terms reasonably protective of for
the Trade Secrets of the Company. To the knowledge
of the Company, no Company Personnel is in breach
of any such agreement. No Company Personnel has any
ownership, license, or other right in any Company-Owned
Intellectual Property, and the Company does not owe any
royalties, license fees or other
amounts to any Company Personnel with respect
to any Company-Owned Intellectual Property.


 


(l)
To the knowledge of the Company
no government funding, facilities or funding
of a university, college, other educational institution or research
center or funding from a granting
agency was used in the development of any Company-Owned
Intellectual Property or Company Offering.


 


(m)
To the Company’s knowledge, the conduct of
the business of the Company as currently
conducted, including the design, development, use, provision,
import, branding, advertising, promotion, marketing, manufacture and sale of any
Company Offerings (i) does not infringe, misappropriate, use or disclose
without authorization, or otherwise violate any Intellectual Property Rights of any Third Party and (ii) does not constitute unfair
competition or trade practices under the Laws of any relevant jurisdiction.


 


(n)
The Company n has received any written notice (or been involved in any
Action) alleging (or describing an allegation) that the Company, the business
of the Company. or any Company Offering, infringes,
misappropriates, uses or discloses without authorization, or otherwise
violates any Intellectual Property Rights of any Person or constitutes
unfair competition or trade practices under the Laws of any
relevant jurisdiction. No Action is pending
or, to the knowledge of the Company, threatened against any Third Party
who may be entitled to be indemnified, defended,
held harmless, or reimbursed by the Company
with respect to any such allegation or Action.
Without limiting the foregoing, the Company
has not received any correspondence asking or inviting the Company
to enter into a Patent license or similar
agreement or to obtain a release, immunity,
or a covenant not to sue for Patent infringement
with respect to the Patents of any other Person.


 


(o)
All use and distribution of Company
Offerings or any Open Source by or through
the Company is in compliance in
all material respects with all Open Source licenses applicable thereto, including
copyright notice and attribution requirements.Section 3.16(o)(i) of the
Company Disclosure Schedule contains a complete and
accurate list of all Open Source that is incorporated
into, integrated or bundled with, linked with,
or used in the development or compilation
of, or otherwise used in or with any Company
Offerings or Company-Owned Intellectual Property.
Section 3.16(o)(ii) of the Company Disclosure Schedule identifies the license
applicable to each such item of Open Source. Except
as set forth in Section 3.16(o)(iii) of the Company Disclosure
Schedule, the Company has not (A) incorporated
Open Source into, integrated, bundled with or otherwise
combined Open Source with, any Company Offerings or Company-Owned
Intellectual Property in the nature of Software;
(B) distributed Open Source in conjunction with or for
use with any Company Offerings or Company-Owned Intellectual
Property in the nature of Software; or
(C) used Copyright Materials in a manner that requires
any Company Offerings, Company-Owned Intellectual Property in the nature of Software,
or any portion thereof to be subject to Copyright Licenses
(or any of the obligations or attributes thereof
as specified in (i) through (iv) of the definition
thereof).


 


(p)
The Company has not made a written claim or initiated
any Action with respect to infringement, misappropriation
or other violation of Intellectual
Property Rights or with respect to unfair competition
or trade practices against any Third Party,
nor has the Company issued any written correspondence asking or inviting any
Third Party to enter into a Patent license or
similar agreement or to obtain a release,
immunity, or a covenant not to sue for Patent infringement
with respect to any Patents.


 


(q)
Prior to permitting the use or download of,
or access to, a Company Offering by
any Person, the Company requires such Person
to enter into an end user license
agreement or affirmatively agree to terms
of use applicable to such Company Offering. The Company
has provided to Parent all forms of nondisclosure
agreements, end user license agreements, terms of
use and other standard form agreements
that are currently or were at any time in use related
to the use or download of, or access
to, Company Offerings.


 


(r)
Section 3.16(r) of the Company Disclosure Schedule contains
a list of all standard-setting organizations, industry bodies and
other standards-related activities that the Company has participated in, been
a member of, or contributed to and
a description of, or reference to a description
of, the nature of such
organizations, bodies and other activities.


 


3.17 Privacy;
Data SecurityAt all times since it began selling any Company Offering, the Company
has provided notice of its privacy practices on all of its websites
and these notices have not contained any material omissions of the Company’s
privacy practices or practices concerning the collection, use, and
disclosure of Personal Information or information
about a user or consumer that is
not Personal Information, including data collected from an IP address,
web beacon, pixel tag, ad tag, cookie, JavaScript, local storage, Software, or
by any other means, or from a particular
computer, Web browser, mobile telephone, or other
device or application, where such data is
or may be used to identify
or contact an individual, device, or application
(including, without limitation, by means of an
advertisement or content), or to predict
or infer the preferences, interests, or
other characteristics of the device or of a
user of such device or application or
is otherwise used to target advertisements
or other content to a device or application or
to a user of such device or application
(“Non-Personal Information”). The privacy policy or policies
providing this notice and the periods each policy
has been in effect are set forth in Section
3.17(a) of the Company Disclosure Schedule (hereinafter collectively, the “Privacy
Policies”).The privacy practices of the Company conform, and at
all times have conformed, in all material
respects to their respective Privacy Policies at the time each
Privacy Policy was in effect and with any public statements
regarding the privacy practices of the Company.
The Company has complied in all material
respects with all Laws relating to: (i) the privacy of users
of (including Internet or mobile users who
view or interact with) the Company
Offerings and all of the websites of the Company, and
(ii) the collection, use, storage, retention, disclosure, and disposal of any
Personal Information or Non-Personal Information collected by the Company,
or by Third Parties acting on the Company’s
behalf ’s behalf or having authorized
access to the Company’s ’s records. The Privacy Policies and practices
of the Company concerning the collection, use,
retention, disclosure, and disposal, of Personal Information or Non-Personal
Information conform, and at all times have materially conformed, to all
of the contractual commitments of the including
to viewers of the websites of the Company
and users of (including Internet users who view or interact with)
the Company Offerings and the contractual
commitments of the Company through which Company Offerings are offered. The
Company’s Privacy Policies and the Company Offerings conform, and at all
times have materially conformed to applicable Law
and, to the extent subject thereto, to the Network
Advertising Initiative’s Self-Regulatory Code of Conduct (2008), the Digital
Advertising Alliance’s Self- Regulatory Principles for Online Behavioral
Advertising, and the Federal Trade Commission’s Principles for the Self Regulation
of Online Behavioral Advertising (2010). Except
as required to process a transaction
or provide the Company Offerings, the Company
has not disclosed, and does not have
any obligation to disclose, any Personal Information or Non-Personal
Information to any Third Party. The Company, the Company’s
websites, and the Company Offerings, have made all disclosures to users or customers
and obtained all necessary consents from users or customers
required by applicable Law, and none of such
disclosures made or contained in any
of the Company’s websites or in any such
materials have been inaccurate, misleading or deceptive or in violation
of any applicable Law. No Actions have been
asserted or, to the knowledge of the Company, are threatened against the Company
by any Person alleging a violation of any
Person’s privacy, personal or confidentiality rights under the Privacy
Policies or any applicable Law. Neither this Agreement nor the transactions contemplated by this Agreement, including any
disclosures of data, will violate the
Privacy Policies as they currently exist or as they existed at any time during which any of the Personal Information or Non-Personal
Information was collected or obtained.


 


(b)
To the knowledge of the Company, at all times
since inception, the Company has complied in all material respects with any Law applicable
to the Company relating to the security of Personal
Information to which the Company or Third Parties
acting on the Company’s behalf, or otherwise
having authorized access to the Company’s records, have access or otherwise
collect or handle. To the knowledge of the Company,
the Company’s information security practices conform, and
at all times have conformed, in all material
respects with (i) any information security statements made by Company
in its respective Privacy Policies at the time each
Privacy Policy was in effect and (ii) all of the contractual
commitments of the Company including, but not limited
to, any contractual commitments to analytics providers,
data providers, publishers, advertisers and advertising networks, exchanges and advertising
networks, through which Company Offerings are offered. The Company has made no statements
to the general public regarding the information
security practices of the Company other than those made
in its respective Privacy Policies. No Actions have
been asserted or, to the knowledge of the Company, are threatened against
the Company by any Person with respect to the
security of Personal Information. To
the knowledge of the Company, there has been
no unauthorized access to or unauthorized
disclosure or use of Personal Information owned or licensed
by the Company or in the Company’s possession
or control by or to any Third Party, including any
Governmental Entity.


 


		3.18	Tax Matters.



 


(a)
The Company has timely filed or caused
to be timely filed with the appropriate Governmental
Entities all Tax Returns required to be filed by, or with
respect to, it. All such Tax Returns are accurate,
correct and complete in all material respects. All material Taxes of the Company
or for which the Company could be liable,
which are due and payable (whether
or not shown on any Tax Return), have been timely paid.
No claim has been made in writing by any Governmental
Entity in a jurisdiction where the Company does
not file a Tax Return that such entity is or
may be subject to Tax
by that jurisdiction. As of June 30, 2021, the
unpaid Taxes of the Company did not exceed
by a material amount the reserve
for Tax liability (excluding any reserve for deferred
Taxes established to reflect timing differences
between book and Tax income) set forth
or included in the consolidated balance sheet
of the Company as of
June 30, 2021 (rather than in any notes thereto). Since
June 30, 2021, Company not incurred any liability
for Taxes outside the ordinary course of
business or inconsistent with past practice.


 


(b)
There is no Action concerning any Tax liability of the Company
ongoing, claimed or raised by any
Governmental Entity in writing or, to the knowledge
of the Company, other than in writing.
The Company has not waived any statute of limitations
in respect of Taxes which waiver has
not yet expired or agreed to any
extension of time with respect to a Tax assessment
or deficiency which extension has not
yet run or in each case been
requested in writing to do so. The
Company is not a party to or bound by any Tax
allocation agreement, Tax indemnity agreement, Tax sharing agreement or similar
Contract with respect to Taxes.


 


(c)
The Company has withheld and paid all Taxes required to have been withheld and paid
in connection with amounts paid
or owing to any employee, independent contractor, creditor,
stockholder of the Company or other Person.


 


(d)
The Company has delivered or made available to Parent
correct and complete copies of all federal, state
and foreign income and other material Tax Returns of the Company
for all Tax years open under the applicable
statute of limitations, including, promptly upon their
availability, for the most recent Tax year.


 


(e)
There is no Lien for Taxes on or against
any property, right or asset of the Company
other than a Permitted Lien.


 


(f)
All deficiencies asserted and assessments made with respect to Taxes
of the Company (i) have been fully
paid or (ii) are being contested in good faith
by appropriate proceedings and an adequate reserve therefor
has been established in accordance with GAAP
on the balance sheet of the Company.


 


(g)
The Company has not been a member of an affiliated group filing a consolidated
federal income Tax Return or any similar group
for federal, state, local or foreign Tax purposes (other than
a group the common parent of which is the Company),
and neither the Company n has
any liability for Taxes of any other Person (other than the Company
) pursuant to Treasury Regulation Section 1.1502-6
(or any similar provision of any other applicable Law), as a transferee
or successor, by Contract or otherwise.


 


(h)
The Company has not entered into a transaction
under which gain or income has been realized but the taxation of such
gain or income has been deferred under any provision of any
applicable Law or by agreement with any Tax authority (including an installment sale,
a deferred intercompany transaction, any change
in method of accounting for a taxable period
ending on or prior
to the Closing Date, any closing agreement as described in Section
7121 of the Code (or any corresponding or similar provision
of any applicable Law) executed on or prior
to the Closing Date, any prepaid amount received on or prior
to the Closing Date, or a gain recognition agreement),
or a transaction under which previously utilized Tax losses or credits
may be recaptured (including a dual consolidated
loss or an excess loss account), in each case
if such gain or income recognition or such
loss or credit recapture, if triggered, would
give rise to a Tax liability.


 


(i)
Neither the Company nor any of
its predecessors by merger or consolidation
has been a party to a transaction intended
to qualify under Section 355 of the Code or under
so much of Section 356 of the Code as relates
to Section 355 of the Code.


 


(j)
The Company is not and has not been a party
to a transaction that is or is substantially similar
to a “listed transaction” within
the meaning of Treasury
Regulation Section 1.6011-4(b)(2) or any other
transaction requiring disclosure under similar provisions
of any applicable Law.


 


(k)
The Company (i) does not have a permanent establishment
(within the meaning of an applicable Tax
treaty) in any country other than
the United States, or operates or conducts
business through any branch in any country
other than the United States, (ii) is not and
has not been a “surrogate foreign
corporation” within the meaning of Section
7874(a)(2)(B) of the Code or is treated as a United
States corporation under Section 7874(b) of the Code or (iii)
was created or organized both in the United
States and in a foreign jurisdiction such
that it would be taxable in the
United States as a domestic entity pursuant to Treasury
Regulation Section 301.7701-5(a).


 


(l)
The Company has not disclosed on its federal
income Tax Returns all positions taken therein that
could give rise to a substantial understatement
of federal income Tax within the meaning of
Section 6662 of the Code.


 


(m)
The Company has not been a United States
real property holding corporation within the meaning
of Section 897(c)(2) of the Code during the
applicable period specified in Section 897(c)(1)(A)(ii)
of the Code.


 


3.19
Insurance.The Company has made available
to Parent accurate and complete copies of all material
insurance policies relating to the business, assets
and operations of the Company (the “Insurance Policies”). Section
3.20 of the Company Disclosure Schedule contains
an accurate and complete list of the Insurance Policies. Each of the Insurance
Policies is in full force and effect, all premiums due thereon as
of the date hereof have been paid
in full and the Company are in compliance
in all material respects with the terms
and conditions of such Insurance Policies. Since January 1, 2021, the Company
has not received any notice or other communication
regarding any actual or possible (a) cancellation
of any Insurance Policy that has not been renewed
in the ordinary course without any lapse in coverage,
(b) invalidation of any Insurance Policy, (c)
refusal of any coverage, limitation in coverage
or rejection of any material claim under any Insurance
Policy or (d) material adjustment in the amount
of the premiums payable with respect to any Insurance
Policy. There is no material claim by the Company
pending under any of the Insurance Policies and no material
claim made since January 1, 2019, in the case
of any pending claim, has been questioned or
disputed by the underwriters of
such Insurance Policies. None of the Insurance Policies
will terminate or lapse by reason of
the transactions contemplated by this Agreement.


 


3.20
Properties and Assets. The Company has, and immediately following the Effective
Time will continue to have, good and valid
title to their owned assets and properties, or
in the case of assets and properties they lease, license,
or have other rights in, good and
valid rights by lease, license or other agreement
to use, all assets and properties (in each case, tangible
and intangible) free and clear of all Liens other than Permitted Liens. To the knowledge
of the Company, the assets and properties (in each
case, tangible or intangible) owned or used
by the Company or the Company Subsidiaries are
in reasonably satisfactory condition for their continued use as
they have been used and reasonably adequate
in all material respects for their current use, subject to reasonable
wear and tear. Notwithstanding the foregoing, it is understood
and agreed that matters regarding Company Intellectual Property are addressed solely
in Section


3.17 and
not in this Section 3.21.


 


3.21 Real
Property.The Company does not own any
real property. Section 3.21 of the Company Disclosure Schedule sets
forth (i) an accurate and complete list of all real property leased, subleased
or otherwise occupied by the Company
(collectively, the “Leased Real Property”), (ii) the address
for each Leased Real Property, (iii) a description of
the applicable lease, sublease or other Contract therefor and
any and all amendments, modifications, side letters
relating thereto and (iv) the current
rent amounts payable by the Company
related to each Leased Real Property. No Lease Agreement is subject to any
Lien granted by the Company, including any right to the use or occupancy
of any Leased Real Property, other than Permitted Liens. The Company has not received
written notice of any Action in eminent
domain, expropriation, condemnation or other similar Actions that are pending,
and, to the knowledge of the Company, as of
the date hereof, there are no such Actions
threatened in writing, affecting any portion of the Leased
Real Property and, to the knowledge of the Company,
there is no such Order or Action threatened in writing,
relating to the ownership, lease, use, occupancy or operation
by the Company of the Leased Real Property.


 


3.22
Information. No representation, statement
or information contained in this Agreement (including
the various exhibits attached hereto) or any
agreement executed in connection herewith or in
any certificate or other document
delivered pursuant hereto or thereto
or made or furnished
to Parent or Purchaser or its representatives
by the Company, contains or shall contain any untrue
statement of a material fact or omits or shall
omit any material fact necessary to make the information
contained herein and therein not misleading. Copies of all
documents listed or described in the various
exhibits and schedules attached hereto and provided
by Company or Seller to Purchaser
or Parent are true, accurate and complete. The information
supplied by the Company will not, when filed
with the SEC in any filing, statement or report
required to be filed by Parent
to authorize or approve the Merger, when distributed
or disseminated, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein,
in the light of the circumstances under which they were made,
not misleading.


 


3.23
Required Vote.The affirmative vote of
(i) the holders of shares
representing a majority of the voting power
of the outstanding shares of the Company’s capital
stock of all classes, voting together as
a single class on an as converted to Common Stock basis,;
and (ii) the holders of shares representing
a majority of the voting power of the outstanding
shares of the Company’s Preferred Stock, voting together
as a single class on an as converted
to Common Stock basis, are the only votes
required, if any, of the holders of any
class or series of capital stock or other
Equity Interests of the Company to approve
and adopt this Agreement and the transactions
contemplated hereby, including the Merger (the “Company Stockholder
Approval”).


 


3.24 Brokers.Neither
the Company nor any stockholder, director,
officer, employee or affiliate of the Company,
has incurred or will incur on behalf
of the Company, any brokerage, finders’, advisory or similar
fee in connection with the transactions contemplated
by this Agreement, including the Merger.


 


3.25
Anti-Corruption Laws.




 


(a)
Neither the Company nor to the Company’s
knowledge, any officer, director, agent, consultant, employee or other Person
acting on behalf of the Company, has, directly or indirectly,
taken any action which would cause them to be in violation
of: (i) the principles set out in the Organization
for Economic Cooperation and Development Convention
Combating Bribery of Foreign Public Officials
in International Business Transactions, (ii) the Foreign
Corrupt Practices Act of 1977, as amended, or any
rules or regulations thereunder and (iii)    any
other applicable anti-corruption and/or anti-bribery Laws of any
Governmental Entity of any jurisdiction
applicable to the Company (whether by virtue of jurisdiction or organization or conduct
of business).


 


(b)
The books, records and accounts of the Company
have at all times accurately in all material respects and fairly reflected, in reasonable
detail, the transactions and dispositions of their
respective funds and assets. There have never been any false or fictitious
entries made in the books, records or accounts
of the Company relating to any illegal payment
or secret or unrecorded fund, and
neither the Company has established or maintained
a secret or unrecorded fund.


 


(c)
The Company has not entered into any
transaction with any of its affiliates that has provided to the Company
revenues, earnings or assets that would not
have been available to it in an arm’s length
transaction with an unaffiliated Person.


 


3.26 Export
Controls. The Company has at all times conducted its export and
related transactions in all material respects in accordance
with (i) all applicable export, re-export, and anti-boycott Laws of the United States, including
the Arms Export Control Act (22 U.S.C.A. § 2278),
the Export Administration Act (50 U.S.C. App. §§ 2401-2420),
the International Traffic in Arms Regulations (22 C.F.R.
120-130), and United States economic sanctions Laws administered by the United States
Treasury Department’s Office of Foreign Assets
Control and (ii)  all other applicable
import and export control Laws in any countries in which the Company
conducts business. Without limiting the foregoing:


 


(a)
The Company has obtained all material export licenses and other material consents, authorizations,
waivers, approvals, and Orders, and have made
or filed any and all necessary notices, registrations,
declarations and filings with any Governmental Entity, and has met the requirements
of any license exceptions or exemptions, as required
in connection with (i) the export and re-export
of products, services, Software or
technologies, and (ii) releases of technology,
technical data or Software to foreign nationals
located in the United States and abroad (“Export Approvals”).


 


(b)
The Company is in compliance in all material
respects with the terms of all applicable
Export Approvals.


 


(c)
There are no pending or, to the knowledge
of the Company, threatened Actions against the Company
with respect to Export Approvals.


 


(d)
To the knowledge of the Company, there
are no actions, conditions or circumstances
pertaining to the Company’s export and
related transactions that may give rise
to any future Actions.


 


(e)
No Export Approvals for the transfer of export
licenses to Parent or the Surviving Corporation
are required, or such Export Approvals can
be obtained expeditiously without material cost.


 


(f)
Section 3.28(f) of the Company Disclosure Schedule sets
forth the accurate and complete export control classification numbers applicable to
the Company’s products, services, Software and technologies.


 


(g)
The Company is not currently violating and has not previously
violated any United States or other applicable Laws involving restrictions
or limitations on the use, development, export
of or encryption of technology, and the business
as currently conducted does not require the Company to obtain
a license pursuant to any applicable Laws
regulating the development, commercialization or export
of technology.


 


3.27 Inventories.The
inventory of the Company shown on the most recent
balance sheet included in the Financial Statements
and the inventory of the Company as of the Closing Date
are stated and will be stated at not more than
the lower of cost (on a first-in
first- out basis) or market, and are
fit for their particular use, do not and will
not include any items below standard quality, defective,
damaged or spoiled, obsolete or of a quality
or quantity not usable or salable
in the ordinary course of the business of the Company
as currently conducted or any items whose expiration date has passed, the value
of which has not been fully written down
or reserved against in the Financial Statements. Schedule
3.29 sets forth a list of all of the Company’s
inventory as of the Closing Date.


 


3.28 Regulatory
Compliance.




 


(a)
The Company is in compliance with all applicable Laws, rules, regulations, and policies
administered or enforced by the U.S. FAA, any
state or municipality and similar agencies in which
such Company’s products or services are offered or sold, and
any other governmental entity that regulates the development of UAV
in any jurisdiction, including, without limitation,
relating to state or federal anti-kickback
sales and marketing practices, insurance and bonding, advertising
and promotion, pre- and post-marketing reporting,
and all other pre- and post-marketing reporting requirements, as applicable.


 


(b)
Schedule 3.30(b) lists each product developed, manufactured, licensed, distributed
or sold by each Company (collectively, the “Products”).
Each Product manufactured by or on behalf of each
Company has been manufactured in accordance with (i) the product
registration applicable to such Product, (ii)
the specifications under which the Product is
normally and has normally been manufactured, (iii) the applicable
provisions of current “CE” or “UL” good manufacturing
practices or other governmental authority and (iv) without limiting the generality
of Section 3.30, the provisions of all applicable Laws.


 


(c)
The Company has obtained all registrations or submissions required
for the Products and all amendments and supplements thereto, and all other Permits
required by the FAA to conduct the
business as it is currently conducted (the
“Regulatory Approvals”). All of the Regulatory Approvals have been
duly and validly issued and are in full
force and effect, and the Company is in compliance
with each such permit held by or issued
to it. Except as listed on Schedule
3.30(c), the Company is the sole and exclusive owner of the Regulatory
Approvals and holds all right, title and
interest in and to all such Regulatory
Approvals. The Company has not granted any third party any right or license to
use, access or reference any of the Regulatory
Approvals, including without limitation, any of the know-how
contained in any of the Regulatory
Approvals or rights (including any regulatory exclusivities) associated with each such
Regulatory Approvals.


 


(d)
There is no action or proceeding by any
governmental or regulatory authority pending or, to the knowledge
of the Company, threatened, seeking the recall
of any of the Products or the revocation or
suspension of any Regulatory Approval. The Company
has made available to Purchaser complete and correct copies of all
Regulatory Approvals. In addition, (i)
the Company has made available to Purchaser
a complete and correct copy of
the Product Data; (ii) to the knowledge of the
Company, all laws and regulations applicable
to the preparation and submission of the Regulatory
Approvals to the relevant regulatory authorities have been complied with; (iii) to
the knowledge of the Company,
the Company has filed with the relevant regulatory
authorities all required notices, supplemental applications, and annual or other reports,
including adverse experience reports, with respect to the Regulatory
Approvals.


 


(e)
There exist no set of facts: (i) which
could furnish a basis for the recall, withdrawal
or suspension of any product registration, product
license, manufacturing license, wholesale dealers license, export license or
other license, approval or consent of any domestic
or foreign governmental or regulatory
authority with respect to the Company or any
of the Products; or (ii) which could furnish
a basis for the recall, withdrawal or suspension
of any Product from the market, the termination
or suspension of any testing of
any Product, or the change in marketing
classification of any Product.


 


(f)
Except as set forth in Schedule 3.30(f),
all Products which have been sold through
the Company have been merchantable and free
from defects in material or workmanship for
the term of any applicable warranties and under
the conditions of any express or implied
specifications and warranties arising under Law and
as set forth in the specific order. Except as disclosed in Schedule
3.30(f) hereto, the Company has not received
any claims based on alleged failure to
meet the specifications or breach
of product warranty arising from any applicable manufacture or sale of the Products.


 


(g)
As of the Closing Date, all Product Inventory will conform to the specifications
therefor contained in the Regulatory Approvals and
to the Regulatory Approvals and with the requirements
of all applicable governmental or regulatory authorities.


 


(h)
The Company is and has been in compliance
with all Laws requiring the maintenance or
submission of reports or records under requirements
administered by the FAA or any other governmental
authority. Neither the Company, nor any
of its employees or agents, have made an untrue
or fraudulent statement to the FAA or any
other applicable governmental authorities, or in any records and documentation prepared
or maintained to comply with the applicable
Laws, or failed to disclose a fact
required to be disclosed to the FAA or
any other similar governmental authorities.


 


(i)
The Company has not been convicted of any
crime or engaged in any conduct that could
result or resulted in debarment,
exclusion or disqualification by the FAA
or any other governmental authority and there are no proceedings
pending or, to the knowledge of the Company,
threatened that reasonably might be expected to result in criminal or civil
liability or debarment, exclusion or disqualification
by the FAA or any other governmental authority.
The Company has not received written notice of or
been subject to any other enforcement action involving the FAA or any other governmental authorities, including any suspension,
consent decree, notice of criminal
investigation, indictment, sentencing memorandum, plea agreement, court order or target or no-target letter, and none of the
foregoing are pending or, to the Company’s knowledge, threatened in writing against the Company.


 


(j)
The Company has security measures and safeguards in place to protect
Personally Identifiable Information it collects from customers
and other parties from illegal or unauthorized
access or use by its personnel or third parties
or access or use by its personnel or third
parties in a manner that violates the privacy
rights of third parties. To the knowledge
of the Company, the Company has complied in
all material respects with all Applicable Laws relating to privacy
and consumer protection and has not collected, received, stored, disclosed, transferred,
used, misused or permitted unauthorized access to any
information protected by Applicable Laws related to privacy,
whether collected directly or from third parties, in an
unlawful manner. The Company has taken all reasonable steps to
protect Personally Identifiable Information against loss or theft
and against unauthorized access, copying, use, modification,
disclosure or other misuse.


 


(k)
The Company is not party to any corporate
integrity agreements, monitoring agreements, consent decrees, settlement orders or similar
agreements with or imposed by any governmental
authority.


 


(l)
True and complete copies of all information, data, protocols, study reports,
safety reports and/or other relevant documents and materials have been made
available to Purchaser.


 


3.29
Banks.Schedule 3.32 sets forth (i)
the name of each bank, trust corporation or
other financial institution and stock or other
broker with which the Company has an account, credit
line or safe deposit box or vault, (ii) the
names of all Persons authorized to draw
thereon or to have access to any safe
deposit box or vault, (iii) the purpose of each
such account, safe deposit box or vault,
and (iv) the names of all Persons authorized
by proxies, powers of attorney or other
like instrument to act on behalf
of the Company in matters concerning their business
or affairs. Except as otherwise set forth in Schedule
3.32, no such proxies, powers of attorney
or other like instruments are irrevocable.


 


ARTICLE
3-A


REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDERS


 


Each
Stockholder hereby represents and warrants, severally and not jointly, as of the Closing
Date to the Purchaser and the Parent
as follows:


 


3.1. Stock
Ownership by Stockholder.
The Stockholder has good title to, and
is the sole record and beneficial owner of, the Shares
set forth Opposite Stockholder’s name on Schedule 2.1 and
the Shares owned by the Stockholder are free and
clear of any and all Encumbrances. The Stockholder is not a party to any
voting trusts, Stockholder agreements, proxies or other
agreements or understandings in effect with
respect to the voting or transfer of any
of the Shares owned by the Stockholder other than
such which will terminate upon the consummation
of the transactions contemplated by this Agreement.


 


3.2.
Authorization; Enforceability.If
the Stockholder is an entity, the execution, delivery
and performance of this Agreement by the Stockholder
and the consummation by the Stockholder
of the transactions contemplated hereby have been duly authorized
by all requisite corporate or
other company action on the part of the Stockholder.
This Agreement has been duly executed and delivered by the Stockholder,
and assuming due authorization, execution and delivery by Purchaser
and Parent, this Agreement constitutes a valid
and binding obligation of the Stockholder
enforceable against the Stockholder in accordance with
its terms, except to the extent that the enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar Laws, or by equitable
principles relating to the rights of creditors
generally.


 


3.5.
No Conflict; Governmental Consents.The execution, delivery and performance
of this Agreement by the Stockholder does
not and will not (i) if the Stockholder
is an entity, violate, conflict with or result
in the breach of any provision of the charter
or by-laws or other
organizational documents of the Stockholder, (ii) conflict with or violate
in any material respect any Law or Order applicable
to the Stockholder, or (iii) result in
the creation of any Encumbrance on any
of the Shares owned by the Stockholder pursuant
to, any note, bond, mortgage, indenture, license, permit,
lease, sublease or other Contract to which
the Stockholder is a party or by which any of
the Shares owned by the Stockholder.
The execution, delivery and performance of this Agreement
by the Stockholder does not and will not require
any Approval or Order of any
Governmental Entity.


 


3.6.
Additional Stockholder Representations. (a) Stockholder represents that it
is an “accredited investor” as such term
is defined in Rule 501 of Regulation D (“Regulation
D”) promulgated under the Securities Act
and that the Stockholder is able to bear
the economic risk of an investment in the Parent
Shares. Stockholder hereby acknowledges and represents that (i) Stockholder has knowledge
and experience in business and financial matters, prior investment experience, including
investment in securities that are non-listed,
unregistered and/or not traded on a national
securities exchange or the Stockholder has employed the services
of a “purchaser representative” (as defined
in Rule 501 of Regulation D), attorney and/or accountant to read
all of the documents furnished or made available
by the Parent to the Stockholder to evaluate
the merits and risks of such an investment on
the Stockholder’s behalf; (ii) the Stockholder
recognizes the highly speculative nature of this investment;
and (iii) the Stockholder is able to
bear the economic risk that the Stockholder
hereby assumes.


 


(b) 
Stockholder understands that the Parent Shares have
not been registered under the Securities Act
by reason of a claimed exemption under
the provisions of the Securities Act that depends,
in part, upon Stockholder’s investment intention.
In connection with the foregoing,
Stockholder hereby represents that the Stockholder is purchasing
the Parent Shares for the Stockholder’s
own account for investment and not with
a view toward the resale or
distribution to others. The Stockholder,
if an entity, further represents that it was
not formed for the purpose of purchasing
the Parent Shares. Stockholder understands and hereby acknowledges that the Company
is under no obligation to register
any of the Parent Shares under the Securities
Act or any state securities or “blue sky” laws.


 


(c) 
Stockholder consents to the placement of a legend
on any certificate or other
document evidencing the Parent Shares that such Parent Shares have not been
registered under the Securities Act or
any state securities or “blue
sky” laws and setting forth or referring
to the restrictions on transferability and sale thereof
contained in this Agreement. The Stockholder is aware
that the Parent will make a notation in
its appropriate records with respect to the
restrictions on the transferability of such
Parent Shares. The legend to be placed
on each certificate shall be in form substantially
similar to the following:


 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED
FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE
ISSUER WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED


 


(b)
Except for the Stockholder’s right to receive
the Merger Consideration payable and issuable to such
Stockholder and except for such Stockholder’s other rights under this Agreement,
Stockholder irrevocably and unconditionally fully and forever waives, releases, and discharges
each of Company, Parent, Purchaser, and each of Company’s
officers and directors, employees, attorneys, agents, affiliates or assigns (“Released
Parties”), from any and all actions, causes of
action, suits, losses, liabilities, rights, debts, dues, sums of money,
accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands, of every kind and
nature whatsoever, whether now known or unknown, foreseen or unforeseen,
matured or unmatured, suspected or
unsuspected, written or oral, in law,
admiralty, or equity, which Stockholder has,
ever had, or now has as against any such Released Parties for, upon, or by reason
of any matter, cause, or thing whatsoever
from the beginning of time through the date of this Agreement
arising out of or relating to any business transactions
between the Stockholder and the Released Parties.


 


ARTICLE
4


REPRESENTATIONS
AND WARRANTIES OF PARENT AND THE PURCHASER


 


Parent
and the Purchaser hereby represent and warrant to the Company
and the Stockholders as follows:


 


4.1 Organization
and Qualification. Each of the Parent and the Purchaser
is a corporation duly organized, validly
existing and in good standing under the Laws of its jurisdiction
of incorporation and has all requisite corporate power and corporate authority to own,
lease and operate its properties and
assets and to carry on its business
as currently conducted. Each of the Parent and the Purchaser
is duly qualified to do business and is in
good standing in each jurisdiction where
the ownership, leasing or operation of its properties or assets
or the conduct of its business requires
such qualification, except where the failure to be so qualified or in good standing, individually or in the aggregate, has not had a
Parent Material Adverse Effect.


 


4.2
Authority.Each of the Parent and
the Purchaser has all necessary corporate power and
corporate authority to execute and deliver this
Agreement, to perform its obligations
hereunder and to consummate the transactions
contemplated hereby, including the Merger. The execution
and delivery of this Agreement by each
of the Parent and the Purchaser,
as applicable, and the consummation by the Parent
and the Purchaser of the transactions contemplated
hereby, including the Merger, have been
duly and validly authorized by all
necessary corporate action, and no other
corporate proceedings on the part of the Parent
or the Purchaser and no stockholder votes are necessary
to authorize this Agreement or to consummate
the transactions contemplated hereby other than, with
respect to the Merger, the filing of
the Certificate of Merger with the Secretary
of State of the State of Delaware
in accordance with the DGCL. This Agreement has been
duly authorized and validly executed and delivered by the Parent
and the Purchaser and, assuming due authorization,
execution and delivery by the Company, constitutes a legally
valid and binding obligation of the Parent and the Purchaser,
enforceable against the Parent and the Purchaser in accordance
with its terms (except as such enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar Laws affecting creditors’ rights generally and subject to the effect
of general principles of equity, whether
considered in a proceeding in equity
or at law).


 


4.3
No Conflict.None of the execution,
delivery or performance of this Agreement
by the Parent or the Purchaser, the consummation
by the Parent or the Purchaser of the Merger
or any other transaction contemplated by this
Agreement, or compliance by Parent
or the Purchaser with any of the provisions
of this Agreement will (with or without notice
or lapse of time, or both):
(a) conflict with or violate any provision of the certificate
of incorporation or bylaws (or any equivalent organizational
or governing documents) of Parent
or the Purchaser; (b) assuming that all consents, approvals,
authorizations and permits described in Section 4.4 have been
obtained and all filings and notifications described in Section 4.4
have been made and any waiting periods thereunder have terminated or expired,
conflict with or violate any Law applicable to Parent
or the Purchaser or any other Subsidiary of
Parent (each a “Parent Subsidiary”)
or any of their
respective properties or assets; or (c) require
any consent or approval under, violate, conflict
with, result in any breach of or any
loss of any benefit under, or constitute a default
under, or result in termination or give
to others any right of termination, vesting, amendment,
acceleration or cancellation of, or result
in the creation of a Lien upon any
of the respective properties or assets of Parent,
the Purchaser or any Parent Subsidiary pursuant
to any Contract or permit to which
Parent, the Purchaser or any Parent Subsidiary
is a party or by which they or any
of their respective properties
or assets may be bound or affected, except, with respect
to clauses (b) and (c), for any such conflicts, violations,
consents, breaches, losses, defaults, other occurrences or Liens which, individually
or in the aggregate, have not had a Parent
Material Adverse Effect.


 


4.4 Required
Filings and Consents.Assuming the accuracy of the representations
and warranties of the Company in Section 3.5,
none of the execution, delivery or performance of
this Agreement by Parent and the Purchaser,
the consummation by Parent and the Purchaser of the Merger or any
other transaction contemplated by this
Agreement, or compliance by Parent or the Purchaser with any of the provisions of this Agreement will require (with or without
notice or lapse of time, or both) any consent, approval, authorization or permit of, or filing or registration with or notification
to, any Governmental Entity or any other Person, other than (a) the filing of the Certificate of Merger
as required by the DGCL, (b) the filing of the Certificate of Designation for Parent Series C Preferred with the Secretary of State
of the State of Delaware, (c) the approval of a majority in interest of the Parent Common Stock, (d) compliance with the applicable
requirements of the Exchange Act and the Securities Act, (e) filings with the SEC as may be required by the Company in connection
with this Agreement, the approval set forth in Subsection c hereof and the transactions contemplated hereby, (f) such filings as may
be required under the rules and regulations of NASDAQ, and (g) where the failure to obtain such consents, approvals, authorizations
or permits of, or to make such filings,
registrations with or notifications to any Governmental Entity or any other Person, individually or in the aggregate, has not had a
Parent Material Adverse Effect.


 


4.5
Litigation. There is no Action pending
or, to the knowledge of Parent, threatened against
or affecting Parent or the Purchaser, or any
executive officer or director of Parent
or the Purchaser, that, individually or in the
aggregate, has had a Parent Material Adverse Effect.


 


4.6
Authorized Stock. The Parent Series C Preferred
has the rights privileges and preferences set forth
in the Certificate of Designation.
The Parent’s authorized capital stock consists solely of the Parent Common Stock,
Parent Series A Preferred Stock and Parent Series B Preferred
Stock and, upon the filing of the Certificate
of Designation, the Parent Series C Preferred.
The Series A Preferred Stock and Series B Preferred
Stock of Parent have the rights, privileges
and preferences set forth in the respective Certificates of Designation
for such series. Upon the NASDAQ Approval, the Parent
will have sufficient authorized shares of Parent Common Stock
for issuance upon the conversion of the shares
of Parent Series C Preferred and the Earn-Out
Shares.4.7Ownership of the Purchaser; No Prior Activities.
The Purchaser was formed solely for the purpose of engaging in the transactions
contemplated by this Agreement. Except for obligations or liabilities
incurred in connection with its incorporation
or organization and the transactions contemplated
by this Agreement, the Purchaser has not and
will not prior to the Closing Date have incurred,
directly or indirectly, through any Subsidiary or
otherwise, any obligations or liabilities or
engaged in any business activities of any type
or kind whatsoever or
entered into any Contracts with any Person.


 


4.8Brokers.Neither
the Parent, the Purchaser nor any
of their respective stockholders, directors, officers, employees or affiliates,
has incurred or will incur on behalf of
Parent, the Purchaser or
any Parent Subsidiary, any brokerage, finders’,
advisory or similar fee in connection with
the transactions contemplated by this Agreement.


 


4.9SEC
Reports; Financial Statements.


 


(a)
Since May 1, 2021, the Parent has timely filed or furnished
all necessary forms, reports and other documents required to be filed
or furnished by it with the SEC
(including any amendments thereof and the exhibits thereto and documents
incorporated by reference therein, the “SEC
Reports”), or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration of any such
extension, except where the failure to file on a timely basis would not have or reasonably be expected to result in a Material
Adverse Effect. To the knowledge of Parent,
as of each of its respective dates, each
SEC Report has complied in all material respects with the requirements of the Securities Act and the Exchange Act and relevant
rules of The Nasdaq Capital Market, as the
case may be, and none of the SEC Reports, when filed or as of its effective dates, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.


 


(b)
The financial statements of the Parent included in the SEC
Reports comply as to form in all material respects
with the published rules and regulations of the SEC with respect thereto and all other applicable
accounting requirements as in effect
at the time of filing (or to the extent corrected
by a subsequent restatement).


 


(c)
Except as disclosed in SEC Reports filed prior to the date
of this Agreement, from the date of the most recent
consolidated balance sheet of the Parent and its subsidiaries
that are disclosed in the SEC Reports through the date
of this Agreement, there have been no events,
occurrences or developments that have had or would
reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect.


 


 


ARTICLE
5 COVENANTS


 


5.1 Conduct
of Business by the Company Pending
the Closing. The Company agrees that, between the date of this Agreement
and the Effective Time, except as set forth in Section
5.1 of the Company Disclosure Schedule, as expressly required by applicable
Law or as contemplated by this Agreement
or otherwise with the prior written consent
of Parent, the Company will (i) conduct
its business only in the ordinary and usual
course of business and consistent with past practice, and (ii) use its commercially
reasonable efforts to keep available, in all
material respects, the services of the current officers,
employees and consultants of the Company and
preserve, in all material respects, the goodwill
and current relationships of the Company with Significant Customers, Significant Suppliers
and other Persons with which the Company has
significant business relationships material to the business of the Company. Without limiting
the foregoing, and as an extension thereof, except as set forth in Section
5.1 of the Company Disclosure Schedule, as expressly required by applicable
Law or contemplated by this Agreement,
or otherwise with the prior written consent
of Parent, the Company shall not, between
the date of this Agreement and the Effective
Time, directly or indirectly, do any
of the following:


 


bylaws;


 


(a) amend
or otherwise change its certificate
of incorporation or


 


(b)
issue, deliver, sell, transfer, pledge, dispose of, grant a Lien or permit
a Lien to exist on, or authorize,
propose or agree to the issuance,
delivery, sale, transfer, pledge or disposition of or granting or placing a Lien on, any shares of any class of capital stock of, or
other Equity Interests in, the Company, or securities convertible into or exchangeable for, or options, warrants, calls, commitments
or rights of any kind to acquire, any shares of any class of capital stock or other Equity Interests of the Company (including, for
the avoidance of doubt, through the adoption of any stockholder rights plan or “poison pill” agreement), other than (i)
pursuant to the requirements of Contracts of the Company as in existence on the date of this
Agreement and which are set forth on Section 5.1(b)(i) of the
Company Disclosure Schedule or (ii) pursuant to the vesting and/or exercise of Company
Options, Restricted Shares and Company Warrants and other contractual rights that are in existence on
the date hereof and in accordance with their
current terms;


 


(c)
sell, pledge, dispose of, transfer, lease, license, guarantee, encumber, abandon
or permit to lapse any material property or assets (including
Intellectual Property Rights) of the Company, except to grant nonexclusive
licenses to customers for use of Company’s
products and services in the ordinary course of business
consistent with past practice;


 


(d)
declare, set aside, make or pay any dividend or other
distribution (whether payable in cash, stock, property or a combination thereof)
with respect to any of its capital
stock or enter into any Contract with respect
to the voting or registration of its capital stock;


 


(e)
adjust, reclassify, combine, split, subdivide or amend the terms
of, or redeem, purchase or otherwise acquire,
directly or indirectly, any of its capital stock
or other Equity Interests;


 


(f)
merge or consolidate the Company with
any Person or adopt a plan of complete
or partial liquidation or resolutions providing for
a complete or partial liquidation, dissolution, restructuring,
recapitalization or other reorganization of the Company;


 


(g)
acquire (including, without limitation, by merger,
consolidation, or acquisition of stock
or assets) any interest or make any investment
in any Person, other than acquisitions of goods and
services in the ordinary course of business
consistent with past practice;


 


(h)
incur any indebtedness for borrowed money in excess
of $20,000 or issue any debt securities or assume,
guarantee or endorse, or otherwise as an accommodation
become responsible for (whether directly, contingently or otherwise),
the obligations of any Person for borrowed money;


 


(i)
make any loans, advances or capital contributions
to, or investments in, any other Person
other than in the ordinary course of business consistent
with past practice in excess of $10,000
in the aggregate;


 


(j)
terminate, cancel, renew, or request or agree to any
material change in or waiver under, any
Company Material Contract, enter into any Contract that, if existing on the date
hereof, would be a Company Material
Contract, or amend any Contract in existence
on the date hereof that, after giving effect
to such amendment, would be a Company Material
Contract;


 


(k)
make or authorize any capital expenditure in excess
of $10,000 individually or $20,000 in the aggregate;


 


(l)
hire or terminate any officer or employee (except with
respect to non-executive employees with aggregate annual compensation below $50,000);


 


(m)
except as required to comply with any Law or any Benefit
Plan or Benefit Agreement as in effect
on the date of this Agreement, (A) pay, announce,
promise or grant, whether orally or in writing,
increase or establish (each, as applicable) any wages, base pay,
fees, salaries, bonuses, incentives, deferred compensation, pensions, severance
or termination payments, change of control
or retention payments, retirement, profit-sharing, fringe benefits,
equity or equity-linked awards, employee benefit
plans, or any other form of compensation
or benefits payable by the Company to any
Participant, including without limitation, any increase or change pursuant to any
Benefit Plan or Benefit Agreement, (B) adopt, establish, enter into, amend, modify
or terminate any Benefit Plan, Benefit Agreement or
collective bargaining, employee association,
works council or similar Contract, (C) enter
into any trust, annuity or insurance agreement
or similar Contract or take any other
action to fund or otherwise
secure the payment of any compensation or benefit
or (D) take any action to accelerate
the time of vesting or payment of any compensation or benefit
or (ii) take any action, directly
or indirectly, that accelerates the vesting
or accelerates the lapse of forfeiture
or other restrictions on equity securities
of the Company; respective affiliates;


 


(n) forgive any loans to directors, officers, employees or any of their




 


(o)
pre-pay any long-term debt; or waive, release, pay, discharge
or satisfy any liabilities or obligations (absolute,
accrued, contingent or otherwise), except in the ordinary
course of business consistent with past practice and in accordance
with their terms;


 


(p)
make any change in accounting policies, practices, principles, methods or procedures,
other than as required by GAAP or by a Governmental
Entity;


 


(q)
commence, compromise, settle or agree to settle any
Action (including any Action relating to this Agreement or the transactions
contemplated hereby) other than those made in the ordinary
course of business consistent with past practice
and which involve only the payment of monetary damages not in excess
of $10,000 individually or $20,000 in the aggregate, in any
case without the imposition of equitable relief
on, or the admission of wrongdoing by, the Company;


 


(r)
make or change any material election with respect to Taxes;
adopt or change any material accounting method with respect to Taxes; amend any
United States federal or material other Tax Return; enter into any
private letter ruling, closing agreement or similar ruling or Contract
with the IRS or any other Tax authority;
enter into any Tax allocation agreement, Tax indemnity agreement, Tax sharing agreement
or similar Contract with respect to Taxes;
consent to any extension or waiver of the statute
of limitations period applicable to any
material Tax claim or assessment; settle any Action with respect to a material amount of Taxes or forego any material Tax
refund;


 


(s)
write up, write down or write off
the book value of any assets, in the aggregate,
in excess of $10,000 individually or $20,000
in the aggregate, except for depreciation and amortization in accordance
with GAAP consistently applied;


 


(t)
convene any regular or special
meeting (or any adjournment thereof) of the stockholders
of the Company other than the Special Meeting
(if such a meeting is required by applicable
Law);


 


(u)
fail to keep in force Insurance
Policies or replacement or revised
provisions providing insurance coverage with respect to the assets,
operations and activities of the Company as are currently in effect; marketable
securities;


 


(v) make any change in its investment policies
with respect to cash or




 


(w)
grant to any Third Party any assignment, license, covenant not to sue,
release, immunity or other right with
respect to the Company Intellectual Property (other than nondisclosure agreements, end
user license agreements, and terms of use entered into in the ordinary
course of business on Company’s applicable standard form agreement
without material changes ) or acquire from a Third Party
a grant of any assignment, license, covenant not to sue,
release, immunity or other right with respect to Intellectual
Property or Intellectual Property Rights, other
than employment agreements between Company and its employees
and non- exclusive, proprietary (i.e., non-Open Source), inbound Software licenses
generally commercially available on commercially reasonable terms
with annual license fees under $10,000 in the aggregate
that do not relate to Intellectual
Property or Intellectual Property Rights incorporated into any
Company Offering; or


 


(x)
authorize or enter into any Contract
or otherwise make any commitment to do any of
the foregoing.


 


5.2 Meeting
of Stockholders to Approve the
Merger.If
approval of the stockholders of the
Company is required under applicable Law to
consummate the Merger, the Company
shall, in accordance with and subject to the requirements
of applicable Law: as promptly as practicable
(i) set a record date for, call and
give notice of a special meeting of
its stockholders (the “Special Meeting”) for the purpose of considering
and taking action upon this Agreement (with the record date
to be set in consultation with the Purchaser),
or (ii) prepare and deliver to its stockholders
a written consent in lieu of the Special
Meeting pursuant to Section 228 of the DGCL
and in each case use its commercially
reasonable efforts to solicit from its stockholders
proxies in favor of the approval of this Agreement
and the Merger, and secure any approval
of stockholders of the Company that is required
by applicable Law to effect the Merger.


 


5.3
Access to Information.




 


(a)
From the date of this Agreement until
the Effective Time, the Company shall and each
of its directors, officers, employees, accountants, consultants,
legal counsel, advisors, agents and other representatives (collectively, “Company Representatives”), to: (i) provide
to Parent and the Purchaser and their respective officers, directors, employees, accountants, consultants, legal counsel, advisors, agents
and other representatives (collectively, the “Parent Representatives”) access at reasonable times upon reasonable
prior notice and in a manner that does not unreasonably disrupt or interfere with business operations, to the officers, employees, agents,
properties, offices and other facilities of the Company and to the books and records thereof (including Tax Returns) and (ii) furnish
promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees,
officers and other aspects of the Company as Parent or the Parent Representatives may reasonably request. No investigation conducted
pursuant to this Section 5.3(a) shall affect or be deemed
to modify or limit any representation or warranty made by the Company in this Agreement.


 


5.4 No
Solicitation.




 


(a)
Except as expressly permitted by this Section 5.4, effective on
the date of this Agreement, the Company
shall, and shall cause each Company Representative to, (i)   immediately
cease and cause to be terminated
any existing solicitation, encouragement, discussion or negotiation with any Third
Party (other than Parent) that may be and (ii) request any such Third Party to promptly
return or destroy all confidential information concerning the Company.


 


(b)
Except as expressly permitted by this Section 5.4, the Company
shall not, and shall cause each Company Representative not to, at
all times from the date of this Agreement
until the earlier of the Effective Time
and the date, if any, on which this Agreement
is terminated pursuant to Article
7, directly or indirectly:(i)
solicit, initiate, or knowingly facilitate or knowingly encourage
(including by providing non-public information) any inquiry, discussion, offer
or request that constitutes, or would
reasonably be expected to lead to, any
proposal, (ii) engage in, enter into, continue
or otherwise participate in any
discussions or negotiations with, or furnish
any non-public information relating to the Company to, or afford
access to the books or records or officers of
the Company to, any Third Party relating to any
proposal or any proposal or offer that
would reasonably be expected to lead
to a proposal, (iii) approve, endorse, recommend, execute or enter into,
or publicly propose to approve, endorse,
recommend, execute or enter into any letter of intent,
memorandum of understanding, agreement in principle,
acquisition agreement, merger agreement or similar definitive Contract (other than an
Acceptable Confidentiality Agreement) with respect to any proposal (an
“Alternative Acquisition Agreement”), (iv) take any action to make the provisions
of any Takeover Statute (including Section 203 of the DGCL)
or any applicable anti-takeover provision in the Company’s
organizational documents inapplicable to any transactions contemplated by a proposal,
(v) terminate, amend, release, modify or fail to enforce
any provision of, or grant any permission,
waiver or request under, any standstill, confidentiality or similar
Contract entered into by the Company in respect of or
in contemplation of a proposal or (vi) propose,
resolve or agree to do any
of the foregoing, in each case for
any acquisition, sale, merger, sale of assets or Shares
or other change of control of the Company.


 


 5.5 Appropriate Action; Consents; Filings.










The
Company, Stockholders and Parent shall use (and cause their
respective Subsidiaries to use) their commercially reasonable efforts to (i)
take, or cause to be taken,
all appropriate action and do, or cause to be done, all things necessary,
proper or advisable under applicable Law
or otherwise to consummate and make
effective the transactions contemplated by this Agreement
as promptly as practicable, including those matters
set forth on Section 5.5(a) of
the Company Disclosure Schedule, (ii) obtain from any
Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders
required to be obtained by Parent
or the Company or any of their
respective Subsidiaries, or to avoid any
Action or Order by any Governmental
Entity, in connection with the authorization,
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby, the Merger and (iii) promptly make all necessary filings, and
thereafter make any other required submissions, and pay
any fees due in connection therewith, with respect to this Agreement,
and the Merger required under (A) the Exchange Act,
the Securities Act and any other applicable securities Laws, and (B) any other
applicable Law, if any; provided, that the Company
and Parent shall cooperate with each other in all respects in connection
with (x) preparing and filing the Proxy or Information
Statement required to be filed by Parent
with the SEC and any other filings made or required to
be made with the SEC and NASDAQ in connection
with the Merger and the transactions contemplated thereby,
(y) and determining whether any other action
by or in respect of, or filing
with, any Governmental Entity is required, in connection
with the Merger and (z) seeking any
such actions, consents, approvals or waivers
or timely making any such filings. The Company and Parent shall furnish
to each other all information required for any
application or other filing under any applicable Law in connection with
the transactions contemplated by this Agreement.
The Company and Parent may, as each deems advisable and necessary, reasonably designate
any competitively sensitive material provided to the other pursuant to this Section
5.5 as “Outside Counsel Only Material.” Notwithstanding anything to the contrary
in this Section 5.5, materials
provided to the other party or its counsel
may be redacted to remove references
concerning the valuation of the Company
and any Company Subsidiaries. The information supplied by the Company or Stockholders in writing
expressly for inclusion or incorporation by reference
in any Parent Proxy or Information Statement (and
any amendment thereof or supplement
thereto) will not, at the dates filed with the SEC
and mailed to the Parent’s stockholders and
at the time of any Meeting or Consent,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements made therein, in
light of the circumstances under which they are
made, not misleading.The Company and Parent shall give (or shall
cause their respective Subsidiaries to give) any
notices to Third Parties, and use, and cause their respective Subsidiaries to use,
their commercially reasonable efforts to obtain
any Third Party consents (i) necessary, proper or advisable to consummate the transactions
contemplated by this Agreement, (ii) required to be disclosed
in the Company Disclosure Schedule or (iii)
required to prevent a Company Material Adverse Effect from occurring prior to
or after the Effective Time; provided, however,
that the Company and Parent shall coordinate
and cooperate in determining whether any actions, consents,
approvals or waivers are required to be obtained
from parties to any Company Material Contracts in connection
with the Merger and seeking any such
actions, consents, approvals or waivers. In the event
that either party shall fail to obtain
any Third Party consent described in the first sentence of this Section
5.5(b), such party shall use commercially
reasonable efforts, and shall take any such actions reasonably requested by the other
party hereto, to minimize any adverse effect upon the Company
and Parent, their respective Subsidiaries, and their respective businesses resulting,
or which could reasonably be expected to result, after the Effective Time, from the failure to obtain such consent. Notwithstanding
anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person with respect to the
Merger, (i) without the prior written consent of Parent, none of the Company shall pay or commit to pay to such Person whose
approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other
obligation due to such Person and (ii) neither Parent nor the Purchaser shall be required to pay or commit to pay to such Person
whose approval or consent is being solicited any cash or other
consideration, make any commitment or incur any liability or other obligation.


 


(b)
Without limiting the generality of anything
contained in this Section 5.5, each
party hereto shall:(i) give the other parties prompt notice
of any request, inquiry, objection, charge or other
Action, actual or threatened, by or before the United
States Federal Trade Commission (“FTC”), the United
States Department of Justice (“DOJ”)
or any other applicable Governmental Entity or
any Third Party with respect to the Merger
or any of the other transactions contemplated
by this Agreement, (ii) keep the other parties informed
as to the status of any such request,
inquiry, objection, charge or other Action and (iii)
promptly inform the other parties of any communication
to or from any Governmental Entity or any Third Party
regarding the Merger. Each party hereto will (i) use its commercially
reasonable efforts to resolve any such request, inquiry, objection, charge or other
Action, and to have vacated, lifted, reversed or overturned
any Order, whether temporary, preliminary or permanent, that
is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement,
which shall include litigating or contesting any such
Action or Order to a final, non- appealable
decision, (subject in all respects to the provisions
regarding the Outside Date set forth in Section
1.1(e) and Section 7.1(k)) so as to
permit consummation of the transactions contemplated
by this Agreement and (ii) consult and cooperate with
the other parties and consider in good faith the views
of the other parties in connection with any filing,
analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made
or submitted in connection with the Merger
or any of the other transactions contemplated
by this Agreement (such cooperation shall include consultation with each other in advance
of any meeting or conference with the FTC, the
DOJ or any other Governmental Entity or, in
connection with any Action by a Third Party, with any
other Person, and to the extent permitted by the FTC,
the DOJ or such other applicable Governmental Entity
or other Person, providing the other party the
opportunity to attend and participate in such
meetings and conferences).


 


(c)
Notwithstanding the foregoing or any
other provision of this Agreement (but subject in
all respects to Section 5.1), (i) nothing
in this Section 5.5 shall limit
a party’s right to terminate this Agreement
pursuant to Article 7 hereof and
(ii) nothing in this Agreement shall obligate Parent,
the Purchaser or any of their
respective affiliates to agree to (and
the Company shall not, without the prior
written consent of Parent): (A) sell, hold separate or otherwise
dispose of all or a portion of its business,
assets or properties, or conduct its business
in a specified manner, (B) pay any amounts (other than
the payment of filing fees and expenses and fees of
counsel), or grant any counterparty to any
Contract any material accommodation, (C) limit in any manner whatsoever the ability
of such entities to conduct, own, operate or
control any of their
respective businesses, assets or properties
or of the businesses, properties or assets of
the Company or (D) waive any of
the conditions set forth in this Agreement.








5.6
Certain Notices.From and after the date of this Agreement
until the Effective Time, each party hereto shall promptly
notify the other party hereto of (a)
the occurrence, or non-occurrence, of any
event that would reasonably be likely
to cause any condition to the obligations of
any party to effect the Merger
or any other transaction contemplated by this Agreement
not to be satisfied or (b) the failure of the
Company or Parent, as the case
may be, to comply with or satisfy
any covenant, condition or agreement to be complied
with or satisfied by it pursuant to this
Agreement which would reasonably be expected
to result in any condition to the obligations
of any party to effect the Merger
or any other transaction contemplated by this Agreement
not to be satisfied; provided, however, that the delivery
of any notice pursuant to this Section 5.6
shall not cure any breach of any
representation, warranty, covenant or agreement contained in this Agreement
or otherwise limit or affect the remedies
available hereunder to the party receiving such notice.


 


5.7 Public Announcements.The
initial press release with respect to this Agreement, the Merger
and the other transactions contemplated hereby shall be a joint release
mutually agreed upon by the Company and Parent.
Thereafter, none of the parties shall (and each of the parties
shall cause its representatives and affiliates,
if applicable, not to) issue any press release
or make any public announcement concerning
this Agreement, the Merger or the other
transactions contemplated hereby without obtaining the prior written consent of (a)
the Company, in the event the disclosing
party is Parent, the Purchaser, any
of its affiliates or any Parent
Representative, or (b) Parent, in the event
the disclosing party is the Company,
or any Company Representative, in each case, with
such consent not to be unreasonably conditioned,
delayed or withheld; provided, however,
that (i) if a party determines, based
upon advice of counsel, that a press release
or public announcement is required by applicable Law
or the rules or regulations
of any applicable stock exchange, such party
may make such press release or public announcement,
in which case the disclosing party shall
use its commercially reasonable efforts to provide
the other parties reasonable time to comment on such
release or announcement in advance of
such issuance, (ii) this Section
5.7 shall terminate upon a Adverse Recommendation
Change and (iii) each of the parties may make public statements
in response to specific questions by the press,
analysts, investors or those attending industry conferences or financial
analyst conference calls, so long as any such
statements are not materially inconsistent
with previous press releases, public disclosures
or public statements made jointly by Parent and
the Company and do not reveal material, non-public
information regarding the other parties, the Merger
or the transactions contemplated hereby.


 


5.8 Indemnification
of Directors and Officers.




 


(a)
Parent and the Surviving Corporation agree that all
rights of indemnification, exculpation and limitation of liabilities
existing in favor of past and present
directors and officers of the Company
as provided in the Company Charter, the Company
Bylaws or under any indemnification, employment or other
similar Contracts between such past and present directors and officers of the Company
and the Company, in each case as in effect on
the date of this Agreement with respect to acts
or omissions in their capacity as directors or officers
occurring at or prior to the Effective Time, shall
survive the Merger and continue in full
force and effect in accordance with their respective terms (unless
otherwise required by applicable Law). From and after the Effective
Time, Parent shall cause the Surviving Corporation to pay
and perform in a timely manner such indemnification obligations. Subject to Section
5.8(c), for a period of six years from and
after the Effective Time, Parent shall cause the certificate
of incorporation and bylaws of the Surviving Corporation
to contain provisions no less favorable with
respect to indemnification, exculpation, and advancement of expenses
of directors and officers than are currently set forth in the Company
Charter and the Company Bylaws (unless otherwise required by applicable
Law).


 


(b)
For a period of six years from
and after the Effective Time, the Surviving
Corporation/Parent shall maintain for the benefit of the Company’s
directors and officers, as of the Effective Time, an insurance and indemnification policy
that provides coverage for events occurring prior to the Effective Time (the “D&O
Insurance”) that is substantially
equivalent to and in any event not less
favorable in the aggregate than the Company’s
existing policy (accurate and complete copies of which have been previously provided
to Parent) or, if substantially equivalent insurance
coverage is unavailable, the best available
coverage; provided, however, that the Surviving Corporation shall not
be required to pay an annual premium for the
D&O Insurance in excess
of 300% of the last annual premium paid prior to the date of
this Agreement, which premium the Company represents
and warrants to be as set forth on Section
5.8(b) of the Company Disclosure Schedule. The
provisions of the immediately preceding sentence shall be deemed
to have been satisfied if
prepaid policies are obtained by Parent prior
to the Effective Time, which policies provide such directors and officers with substantially equivalent
coverage for an aggregate period of six years with respect to claims
arising from facts or events that occurred on or before
the Effective Time, including, without limitation, in respect
of the transactions contemplated by this Agreement.
If such prepaid policies have been obtained prior
to the Effective Time, the Surviving Corporation shall
maintain such policies in full force and effect, and continue to honor the obligations
thereunder.


 


(c)
In the event Parent or the Surviving
Corporation (i) consolidates with or merges into any
other Person and shall not be the continuing or surviving
corporation or entity of such consolidation
or merger or (ii) transfers all or substantially
all of its properties and assets to any Person,
then proper provision shall be made so that
such continuing or surviving corporation or
entity or transferee of such assets, as the
case may be, shall assume the obligations set forth
in this Section 5.8.


 


(d)
The obligations under this Section 5.8 shall not be terminated
or modified in such a manner
as to adversely affect in any material respect
any indemnitee to whom this Section
5.8 applies without the consent of such
affected indemnitee, subject to applicable Law (it
being expressly agreed that the indemnitees
to whom this Section 5.8 applies
shall be third party beneficiaries of
this Section 5.8).


 


5.9
State Takeover Laws. If any
Takeover Statute becomes or is deemed to be applicable
to the Company, Parent or the Purchaser,
the execution, delivery or performance of
this Agreement, the Merger, including the acquisition
of Shares pursuant thereto, or any other transaction
contemplated by this Agreement, then the Company
Board shall take all action necessary to render such
Law inapplicable to the foregoing.


 


5.10 Section
16 Matters. Prior to the
Effective Time, the Company Board, or an
appropriate committee of non-employee directors thereof,
shall adopt a resolution consistent with the interpretive
guidance of the SEC so that
the disposition by any officer or director
of the Company who is a “covered
person” of the Company for purposes of Section 16 of the Exchange
Act and the rules and regulations thereunder (“Section 16”)
of Shares or Company Options pursuant
to this Agreement, and the Merger, shall be
an exempt transaction for purposes of Section
16.


 


5.11 Employees.




 


(a)
Nothing in this Agreement shall restrict the right
of Parent or any of its affiliates
(including the Surviving Corporation) to terminate
the employment of any employee after the Closing
Date. The provisions of this Section
5.11 are solely for the benefit of
the parties to this Agreement, and no employee
or former employee of the Company
or any other individual associated therewith or any
Benefit Plan or trustee thereof shall be regarded
for any purpose as a third party beneficiary of this Agreement,
and nothing herein shall be construed as an
amendment or other modification of any
Benefit Plan for any purpose. In addition,
nothing in this Agreement shall be construed
to create any right to any
particular term or condition of employment
or limit the right of Parent or any of its affiliates
(including the Surviving Corporation) to amend
or terminate or otherwise modify
any Benefit Plan following the Effective Time.


 


5.12
Benefit Plans.Effective as of the day
prior to the Effective Time, the Company will terminate
any and all Benefit Plans intended to qualify
as a qualified cash or deferred arrangement
under Section 401(k) of the Code, and effective as
of the day immediately prior to the Effective
Time no employee of the Company
shall have any right thereafter to contribute
any amounts to any Benefit Plan intended to qualify as a qualified
cash or deferred arrangement under Section 401(k)
of the Code. At the request of Parent,
the Company will provide Parent with evidence that each such Benefit Plan has been terminated effective
as of the day immediately prior to the Effective
Time pursuant to resolutions duly adopted by the Company
Board. In addition, at the request
of Parent, the Company and each Company Subsidiary
will terminate any and all other Benefit Plans, including any group health, dental, severance, separation or salary
continuation plans, programs or arrangements,
effective either the day immediately prior to the Effective
Time or thereafter as specified by Parent and,
at the request of Parent,
the Company will provide Parent with evidence that such Benefit Plans have been
so terminated pursuant to resolutions duly adopted
by the Company Board. The Company also shall take such other actions in furtherance
of terminating such Benefit Plans as Parent may reasonably require.


 


5.13
Stockholder Litigation.The Company shall control, and the Company
shall give Parent the opportunity to
participate in the defense of, any Action
brought by stockholders of the Company against
the Company and/or its directors relating to
the transactions contemplated by this Agreement,
including the Merger; provided, however, that the Company
shall not compromise, settle, come to an arrangement
regarding or agree to compromise, settle
or come to an arrangement regarding any Action arising or resulting
from the transactions contemplated by this Agreement,
or consent to the same without the prior written consent
of Parent (which consent shall not be unreasonably
withheld or delayed).





 


5.14
Obligations of the Purchaser.Parent
will take all actions necessary to cause
the Purchaser to perform its obligations
under this Agreement and to consummate
the Merger on the terms and conditions set forth
in this Agreement.


 


5.15
Escrow Agreement. At the Closing, Parent.
Stockholders and the Escrow Agent shall execute and deliver the Escrow
Agreement for the Escrow Shares in form and
substance reasonably acceptable to the parties.


 


5.16
Notice of Developments.During
the period from the date of this Agreement
to the Closing Date, each party will give prompt written
notice after discovery thereof to the others of
any material adverse development causing a breach
of any of such party’s representations,
warranties and covenants set forth herein. No disclosure by any
party pursuant to this Section 5.19, however,
shall be deemed to amend or supplement
the Disclosure Schedules or to prevent
or cure any misrepresentation or breach of warranty.


 


5.17
Company Financial Statements. Within forty-five (45) days following the execution
of this Agreement, the Company shall prepare and deliver
to Parent US GAAP audited financial statements prepared by a PCAOB
(Public Company Accounting Oversight Board) firm in such form and for such periods
as is required to be filed in a Current
Report on Form 8-K by Parent to be
filed with the SEC following Closing (prior
two full fiscal years) (the “Audited Financial Statements”) as well as
unaudited reviewed quarterly financial information as is required to be filed
in a Current Report on form 8-K by Parent
for such quarterly periods as are required
to be filed. The Company shall, not later than
thirty (30) days after execution of this Agreement, deliver to the Parent
its opening balance sheet audited by a PCAOB
firm as well as pro forma financial statements of the post-Transaction
balance sheet of the Parent and Company, on a consolidated
basis, and such additional information as is required by Parent.


 


 


ARTICLE
6


CONDITIONS
TO CONSUMMATION OF THE MERGER


 


6.1
Conditions to Obligations of Each Party Under
This Agreement.The respective obligations
of each party to consummate the Merger shall
be subject to the satisfaction at or prior to
the Effective Time of each of the following
conditions:


 


(a)
This Agreement shall have been adopted and the Merger
approved by the requisite vote or written consent of the stockholders
of the Company, if required by applicable Law.


 


(b)
The consummation of the Merger shall not then be restrained,
enjoined or prohibited by any Order
of a court of competent jurisdiction or any other
Governmental Entity and there shall not be in effect any
Law enacted, promulgated or deemed applicable to the Merger
by any Governmental Entity which prevents
the consummation of the Merger; provided, that
prior to invoking this Section 6.1(c), each party shall use its commercially
reasonable efforts to have any such Order or
other legal restraint or prohibition lifted.


 


(c)
Decathlon Capital Investments (“Decathlon”) and Parent shall have entered into a Secured
Loan and Security Agreement in form an substance satisfactory
to Parent and terminated that certain Revenue Loan
and Security Agreement dated as of December
24, 2020 by and between Decathlon and Company
(the “Revenue Agreement”) and
released Company from any and all obligations related thereto. Stockholders shall have entered
into Indemnification Agreements in form and substance
satisfactory to Parent and Purchaser indemnifying Parent, Purchaser and Company from and
against all claims, liabilities and obligations related to the Decathlon Agreement
or arising from the Company’s
agreements with Decathlon.


 


 


ARTICLE
7


TERMINATION,
AMENDMENT AND WAIVER


 


7.1
Termination. This Agreement may be
terminated, and the Merger and the other
transactions contemplated hereby may be abandoned by action
taken or authorized by the board of directors
(or appropriate committee or designee) of the terminating
party or parties, whether before or after
approval of the Merger by the stockholders
of the Company:


 


(a)
By mutual written consent of Parent and
the Company at any time;


 


(b)
By either the Company or Parent,
provided, however, that the right
to terminate the Agreement pursuant to this
Section 7.1(b) shall not be available
to any party whose breach of this Agreement
has been the primary cause of or primarily
resulted in the failure or the non-satisfaction
of any condition or requirement of this Agreement
or any voting agreement entered by Stockholders
in connection herewith;


 


(c)
By either the Company or Parent,
if any court of competent jurisdiction or other
Governmental Entity shall have issued an Order or taken any
other action permanently restraining, enjoining or otherwise
prohibiting (i) omitted (ii) prior to the Effective
Time, the Merger, and such order, decree, ruling
or other action shall have become final and nonappealable
(which Order or other action the party seeking
to terminate this Agreement shall have used
its commercially reasonable efforts to resist, resolve
or lift, as applicable, subject to the provisions
of Section 5.5); provided, however, that the right
to terminate this Agreement pursuant to this
Section 7.1(c) shall not be available
to any party if the issuance of such
final and non-appealable Order or other
action was due to the failure by such
party (including, in the case of Parent, the
Purchaser) to perform any of
its obligations under this Agreement;


 


(d)
By Parent, at any time if: (i) there
shall be an Uncured Inaccuracy in any representation
or warranty of the Company contained in this
Agreement or breach of any
covenant of the Company contained in this
Agreement, in any case, (ii) Parent shall have
delivered to the Company written notice of such
Uncured Inaccuracy or breach and (iii) either such
Uncured Inaccuracy or breach is not capable
of cure or at least 20 calendar days shall
have elapsed since the date of delivery
of such written notice to the Company and such Uncured
Inaccuracy or breach shall not have been cured;


 


 


Adverse Effect;


		(e)	By Parent, at any time if there has been
a Company Material






 


or


 


(f)
By either the Company or Parent
if the closing of the Merger has not occurred
by the Outside Date; provided, however, that the right
to terminate this Agreement pursuant to this
Section 7.1(k) shall not be available
to any party whose breach of this Agreement
has been the primary cause of or primarily
resulted in the failure of the Merger to close
by the Outside Date.


 


 7.2 Effect of Termination.




 


(a)
In the event of termination of
this Agreement by either the Company
or Parent as provided in Section 7.1,
this Agreement shall become void and there shall
be no liability or obligation on the part
of Parent, the Purchaser
or the Company or their respective Subsidiaries, officers
or directors except (i) with respect to Section
5.7, and Article 8 and (ii) with
respect to any liabilities or damages incurred
or suffered as a result
of the willful and material breach by the Company,
on the one hand, or Parent or
the Purchaser, on the other hand, of any of
their respective representations, warranties, covenants
or other agreements set forth in this Agreement.


 


7.3
Amendment. Subject to Section 1.3(c),
this Agreement may be amended by the Company,
Parent and the Purchaser by action taken
by or on behalf of their respective boards of
directors at any time prior to the Effective
Time; provided, however, that, after approval of the Merger by
the Company’s stockholders, no amendment may
be made which, by Law or in accordance
with the rules of any
relevant stock exchange, requires further approval by such
stockholders. This Agreement may not be amended except by an
instrument in writing signed by the parties
hereto.


 


7.4
Waiver. Subject to Section 1.3(c),
at any time prior to the Effective Time, Parent and the Purchaser, on the one hand,
and the Company, on the other hand,
may (i) extend the time for the performance
of any of the obligations or other acts of the other,
(ii) waive any Uncured Inaccuracies in the representations
and warranties of the other contained herein or in any
document delivered pursuant hereto and (iii) waive compliance by the other with any
of the agreements or covenants contained herein; provided,
however, that after any approval of this Agreement by the Company’s
stockholders, there may not be any extension
or waiver of this Agreement
which decreases the Merger Consideration or which
adversely affects the rights of the Company’s
stockholders hereunder without the approval
of such stockholders. Any such extension or
waiver shall be valid only if set
forth in an instrument in writing signed
by the party or parties to be
bound thereby, but such extension or waiver
or failure to insist on strict compliance with an
obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.


 


 


ARTICLE
8


GENERAL PROVISIONS


 


8.1 Fees and
Expenses. Subject to Section
7.2 hereof, all Expenses incurred by the parties
hereto (including, without limitation, any Expenses incurred in connection
with obtaining any Third Party consents or any filings to be made
pursuant to (i) the Exchange Act, the
Securities Act or the rules and regulations
of the NASDAQ, or (ii) the DGCL or any
Takeover Laws), shall be borne solely and entirely by the party which has incurred the same.


 


8.2
Notices.All notices and other communications required or permitted
under this Agreement shall be in writing and
shall be either hand delivered in person, sent
by facsimile, sent by electronic mail
(if also confirmed by facsimile sent during normal
business hours of the recipient, effective as of the delivery
of the facsimile; if not sent via facsimile during
normal business hours, then on the next Business Day), sent by certified
or registered first-class mail, postage prepaid, or
sent by nationally recognized express courier service.
Such notices and other communications shall be effective upon receipt if hand
delivered or sent by facsimile
or electronic mail, three Business Days after mailing if sent
by mail, and one Business Day after dispatch if sent
by express courier, to the following addresses,
or such other addresses as any party may notify
the other parties in accordance with this Section
8.3.


 


If to
Company, addressed to it at:


 


Teal Drones, Inc.


5200 S. Highland
Drive Suite 201


Holladay, UT
84117


Phone:(801)706-6385


Attention:George
Matus, CEO


with
a copy to (for information purposes
only): Holland and Hart, LLP


222 South Main Street
Suite 2200


Salt Lake
City, UT 84101 Phone:(801) 799-5861


E-mail:JPSteele@hollandhart.com
Attention: Jeffrey Steele, Esq.


If
to the Parent or Purchaser, addressed to it
at: Red Cat Holdings, Inc.


370 Harbour
Drive Palmas del Mar Humacao, PR 00791


Phone:(833) 373-3228


E-mail:Jeff@redcat.red
Attention:Jeffrey Thompson, CEO


 


with a copy
to (for information purposes only): Law Office
of Harvey Kesner


Phone:(646) 678-2543


E-mail:pdox74@gmail.com
Attention:Harvey Kesner, Esq.


 


 


8.4
Certain Definitions. For purposes of this Agreement,
the term:


 


“Acceptable
Confidentiality Agreement” means a confidentiality agreement that contains confidentiality
provisions that are no less favorable in the aggregate
to the Company than those contained in the Confidentiality
Agreement.


 


“affiliate”
means a Person that directly or indirectly,
through one or more intermediaries, controls,
is controlled by, or is under common control
with, the first-mentioned Person.


 


“beneficial ownership” (and related
terms such as “beneficially owned” or
“beneficial owner”) has the meaning set
forth in Rule 13d-3 under the Exchange Act.


 


“Benefit
Agreement” means each employment, consulting, bonus, incentive or deferred
compensation, equity or equity-based compensation, noncompetition, nondisclosure,
non solicitation, severance, retirement, change in control,
retention, termination or other similar Contract between the Company
, on the one hand, and any Participant, on the other
hand.


 


“Benefit
Plan” means each pension plan (as defined in Section 3(2) of ERISA,
but whether or not subject to ERISA), post-retirement
or employment health, medical, other welfare, cafeteria, disability, bonus, incentive,
deferred compensation, equity or equity-based, severance, retirement, change in control,
retention or termination plan, policy, program, practice,
Contract and any other material plan, policy, program, practice or Contract
providing compensation or other benefits
to any Participant (or any dependent or beneficiary
thereof), including in each case, each “employee benefit plan”
as defined in Section 3(3) of ERISA, which
are sponsored, maintained, contributed to or required
to be maintained or contributed to by
the Company, or any Commonly Controlled
Entity or under which the Company, or
any Commonly Controlled Entity has any material obligation
or liability, other than any Benefit Agreement.


 


“Business
Day” has the meaning set forth in Rule 14d-1(g)(3)
of the Exchange Act.


 


“Code” means the United States Internal Revenue
Code of 1986, as amended, and the rules
and regulations thereunder.


 


“Commonly
Controlled Entity” means any Person or entity that is (or
at any relevant time was) treated as a single employer
or under common control with the Company
within the meaning of Section 414 of
the Code.


 


“Company
Intellectual Property” means any and all Intellectual Property and Intellectual
Property Rights that are owned, used, held for use or practiced
by the Company , including any Intellectual Property
and Intellectual Property Rights incorporated into or otherwise
used, held for use or practiced in connection
with any Company Offerings.








“Company
Intellectual Property Contracts” means the Inbound Intellectual Property Contracts
and Outbound Intellectual Property Contracts.


 


“Company
Material Adverse Effect” means any change, event, effect, occurrence, or
development that, individually or in the aggregate,
has had or would reasonably be expected
to have a materially adverse effect on the business,
results of operations, assets, liabilities or
condition (financial or otherwise) of the Company,
taken as a whole, except for any of the following
changes, events, effects, occurrences or developments:
(A) changes in general economic or political
conditions or financial or securities markets
in general, in each case, in the United States
or elsewhere in the world, (B) changes in the
principal industry in which the Company
operate, (C) changes in Laws or the enforcement
or interpretation thereof applicable to the Company
or in GAAP or in accounting standards, (D) acts
of war, armed hostilities, sabotage or terrorism,
or any escalation or worsening of any
acts of war (whether or not declared),
armed hostilities, sabotage or terrorism, earthquakes, hurricanes, tornados or other
natural disasters or calamities, (E) the negotiation,
execution, delivery, announcement or performance of this Agreement
or the taking of any
actions pursuant to this Agreement, including without limitation, the impact
thereof on the relationships of the Company
with customers, (F) any failure of the Company to meet
any internal or public projections, forecasts or
estimates or the issuance of revised projections
that are not as optimistic as those in existence
on the date hereof, (G) any changes in the market price
or trading volume of shares of Company
Common Stock; provided, however, that the underlying causes
of such change or failure shall not be excluded
by this clause (G), or (H) the suspension of
trading generally on the New York Stock Exchange
or the Nasdaq Stock Market, except in the case
of clauses (A), (B), (C) and (D), any changes, events, effects, occurrences or
developments which disproportionately affect, individually or together
with other changes, events, effects, occurrences or developments,
the Company when compared to other Persons operating
in the principal industry in which the Company
operates.


 


“Company
Offerings” means any products or services developed, manufactured, offered, provided,
sold or otherwise distributed by or for
the Company, including any products or
service offerings under development that form
the basis, in whole or in part, of any
revenue or business projection provided to Parent.


 


“Company
Warrant” means any option or arrangement
to purchase Shares that is outstanding
immediately prior to the Effective Time under any of the Contracts
listed in Section 3.2(b) of the Company Disclosure
Schedule.


 


“Company-Owned
Intellectual Property” means any and all Company Intellectual Property that
is owned in whole or in part
by the Company (or that the Company claims or
purports to own in whole
or in part). Company-Owned Intellectual Property includes Registered Company Intellectual Property.


 


“Contracts”meansanyoftheagreements,arrangements,commitments,
understandings, contracts, leases (whether for real or personal property),
powers of attorney, notes, bonds, mortgages,
indentures, deeds of trust, loans, evidences of indebtedness,
purchase orders, letters of credit, undertakings, covenants
not to compete, licenses, instruments, obligations, understandings, policies, purchase and
sales orders, quotations and other commitments to which a Person is a party or to which
any of the assets of such Person or its Subsidiaries are subject, whether oral or written, express or implied.


 


“control”
(including the terms “controlled by” and
“under common control with”) means the possession,
directly or indirectly or as trustee
or executor, of the power to direct or cause
the direction of the management or policies
of a Person, whether through the ownership of
stock or as trustee or
executor, by Contract or credit
arrangement or otherwise.


 


“Copyright
License” means any license that requires, as a condition
of use, modification or distribution of Works
of Authorship, that such Works of Authorship,
or other Software or other Intellectual Property incorporated
into, derived from, used, or distributed with such
Works of Authorship: (i) in the case
of Software, be made available or distributed
in a form other than binary (e.g., source code
form), (ii) be licensed for the purpose
of preparing derivative works, (iii) be licensed under
terms that allow the Company Offerings, Company-Owned Intellectual Property, or portions
thereof or interfaces therefor to be reverse engineered,
reverse assembled or disassembled (other than
by operation of law) or
(iv) be redistributable
at no license fee.


 


“Copyright
Materials” means any Software or
other Intellectual Property subject to a Copyright
License.


 


“Environmental
Claims” means all accusations, allegations, Liens, demands, Actions, or
causes of action for any damage, including,
without limitation, personal injury or property damage,
arising out of or related to Environmental Conditions
or pursuant to applicable Environmental Laws.


 


“Environmental
Conditions” means the presence of
Hazardous Substances in the environment (including
natural resources, soil, surface water, ground water, any present or potential
drinking water supply, subsurface strata or ambient
air) relating to or arising out of the conduct
of the business of the Company
..


 


“Environmental
Laws” shall mean all applicable Laws relating to pollution, protection
of the environment (including without limitation ambient air, surface water, ground water, land
surface, subsurface strata, wildlife, plants, or other
natural resources), and/or protection of the health and safety of Persons
from exposures to Hazardous Substances in the
environment.


 


“Equity
Exchange Ratio” means the quotient
obtained by dividing (x) the Merger Consideration
by (y) the Applicable Parent Stock Price.


 


“Equity
Interest” means any share of capital
stock, partnership, member or similar equity
interests in any Person, and any securities (including debt securities) convertible
into, or exchangeable or exercisable for, any
such shares, capital stock, partnership, member
or similar equity interests, or
any options, warrants or other
rights of any kind to acquire or that
are linked to the value of any such
shares, capital stock, partnership, member or similar
equity interests or such convertible or exchangeable
securities, or any other ownership interest (including, without limitation, any such interest
represented by Contract right), of such Person.


 


“ERISA”
means the United States Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations thereunder.


 


“Expenses”
includes all out-of-pocket expenses (including all fees and expenses of counsel,
accountants, investment bankers, financing sources, experts and consultants to a
party hereto and its affiliates) incurred by
a party or on its behalf in connection
with or related to the authorization, preparation,
negotiation, execution and performance of this Agreement and the transactions
contemplated hereby, including the preparation, printing, filing and mailing of the
Proxy Statement, and any solicitation of stockholder
approvals and all other matters related to the transactions contemplated by this
Agreement.


 


“GAAP” means generally accepted accounting principles as applied in
the United States.


 


“Governmental
Entity” means any nation, federal, state, provincial, county, municipal, local
or foreign government, or other political subdivision
thereof, and any entity exercising executive, legislative, judicial, regulatory, taxing or
administrative functions of or pertaining
to government.


 


“Hazardous
Substances” shall mean all pollutants, contaminants, chemicals, wastes, and any other infectious,
carcinogenic, ignitable, corrosive, reactive, toxic or otherwise
hazardous substances or materials (whether solids, liquids or gases)
subject to regulation, control or remediation
under applicable Environmental Laws.


 


“Intellectual
Property” means any and all: (i) technology, formulae, algorithms, procedures,
processes, methods, techniques, knowhow, ideas,
creations, inventions, discoveries, and improvements (whether patentable or unpatentable and
whether or not reduced to practice), (ii)
technical, engineering and manufacturing information and materials, (iii)
specifications, designs, models, devices, prototypes, schematics and development
tools, (iv) Software, websites, content, images, graphics, text,
photographs, artwork, audiovisual works, sound recordings, graphs, drawings, reports,
analyses, writings, and other works of authorship and copyrightable subject matter
(“Works of Authorship”), (v)
databases and other compilations and collections of data
or information (“Databases”), (vi) trademarks, service marks, logos
and design marks, trade dress, trade names, fictitious and other business names, and brand
names, together with all goodwill associated with any of the foregoing
(“Trademarks”), (vii) domain names, uniform resource locators
and other names and locators associated with the Internet
(“Domain Names”); (viii)  information
and materials not generally known to the public,
including trade secrets and other confidential and proprietary information, such as
product, marketing, servicing, financial, supplier, and personnel information,
customer lists, customer contact and registration information, customer correspondence
and customer purchasing histories (“Trade Secrets”) and (ix)   tangible
embodiments of any of the foregoing, in any form
or media whether or not specifically listed
herein.


 


“Intellectual
Property Rights” means any and all rights (anywhere in the world, whether statutory,
common law or otherwise) relating to,
arising from, or associated with Intellectual Property,
including: (i) patents and patent applications, utility models and applications for
utility models, inventor’s certificates and applications for inventor’s certificates,
and invention disclosure statements (“Patents”), (ii) copyrights and all other rights with respect to Works of Authorship
and all registrations thereof and applications therefor (including moral, economic and other industrial property rights, however denominated)
(“Copyrights”), (iii) other rights with respect to Software, including registrations thereof and applications therefor,
(iv) industrial design rights and registrations thereof and applications therefor, (v) rights with respect to Trademarks, and all registrations
thereof and applications therefor, (vi) rights with respect to Domain Names, including registrations thereof and applications therefor,
(vii) rights with respect to Trade Secrets, including rights to limit the use or disclosure thereof by any Person, (viii) rights with
respect to Databases, including copyright registrations thereof and copyright applications therefor, (ix) publicity and privacy rights,
including all rights with respect to use of a Person’s name, signature, likeness, image, photograph, voice, identity, personality,
and biographical and personal information and materials and (x) any rights equivalent or similar to any of the foregoing.


 


“IRS”
means the United States Internal Revenue Service.


 


“knowledge”
of a Person means actual knowledge, after reasonable inquiry, of any
executive officer of the Person and, solely
with respect to the Company, the knowledge of
George Matus, or in the case of any Stockholder
representation, such Stockholder.


 


“Law”
means any international, national, provincial, federal, state, municipal and local laws,
treaties, statutes, ordinances, certificates, notices, by-laws, rules, regulations, Orders,
or other requirements, policies or instruments
of any Governmental Entity having the force
of law.


 


“Licensed
Company Intellectual Property” means any Company Intellectual Property that
is not Company-Owned Intellectual Property and is licensed
to the Company.


 


“Lien”
means any lien, mortgage, pledge, conditional or installment
sale agreement, encumbrance, covenant, condition, restriction, charge, option, right
of first refusal, easement, security interest, deed of trust,
right-of-way, encroachment, community property interest or other claim or restriction
of any nature, whether voluntarily incurred or arising by operation
of law, including any restriction on the voting
of any security, any restriction on the transfer
of any security or other
asset, and any restriction on the possession, exercise or
transfer of any other attribute of ownership
of any asset.


 


“on
a fully diluted basis” means, as of
any date, (i) the number
of Shares outstanding, plus (ii) the number
of Shares the Company is then
required to issue pursuant to options, warrants, rights
or other obligations outstanding at such date under any
employee stock option or other benefit plans, warrant
agreements or otherwise (assuming all
options and other rights to acquire or obligations
to issue such Shares are fully vested and exercisable
and all Shares issuable at any time have been issued), including pursuant to the Company
Stock Option Plans.


 


“Open
Source” means any Software or other Intellectual Property that is distributed
under an open source license such as (by way of example
only) the GNU General Public License, GNU Lesser
General Public License, Apache License, Mozilla Public License,
BSD License, MIT License, Common Public License, any derivative of any
of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative.


 


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


 


“Parent
Material Adverse Effect” means any change, event, development, condition, occurrence or
effect that prevents or materially
delays, or would reasonably be expected
to materially delay, consummation of the Merger
or performance by Parent or the Purchaser of
any of their material obligations under this
Agreement.


 


“Participant”
means each current or former director, officer, employee or independent
contractor of the Company .


 


“Permitted
Liens” means (a) Liens for Taxes
not yet due and payable or that are
being contested in good faith by appropriate
proceedings and for which adequate reserves have been established in accordance
with GAAP in the Company’s financial statements, (b) Liens in favor
of vendors, carriers, warehousemen, repairmen, mechanics, workmen, materialmen, construction
or similar liens or encumbrances arising by
operation of law, (c) with respect to Leased
Real Property, Liens disclosed on existing
title reports or existing surveys made available
to Parent and such other non-monetary Liens, if any,
which would not, individually or in the aggregate,
interfere materially with the ordinary conduct of
the business of the Company or
would detract materially from the use, occupancy, value
or marketability of title thereto, including (i) easements, encroachments and other matters
not of record which would be disclosed by an
accurate survey or a personal inspection of the property
and (ii) title to any portion of the premises
lying within the right of way
or boundary of any public road
or private road.


 


“Person”
means an individual, corporation, limited liability company, partnership, association,
trust, unincorporated organization, other entity or
group (as defined in Section 13(d) of the Exchange
Act).


 


“Personal
Information” means information from or about an individual that is sufficient
to identify such individual, including, but not limited
to, an individual’s: first and last name, home or other physical address;
telephone number, including home telephone number
and mobile telephone number, email address or
other online contact information, such as a
user identifier or screen name; financial
account number, government-issued identifier, or persistent
identifier, such as IP address or other
unique identifier associated with a Person,
device or web browser; list of contacts; sufficiently
precise physical location; or any other information from or about
an individual consumer that is combined
with information from or about an individual that
is sufficient to identify such individual.


 


“Registered
Company Intellectual Property” means:(i) all Patents, registered
Trademarks, applications to register Trademarks (including intent-to-use
applications), registered Copyrights, applications to register Copyrights, and all
Domain Names that are registered,
recorded or filed by, for, or under
authorization from (or in the name
of) the Company and (ii) any other applications, registrations, recordings and filings
by the Company (or otherwise authorized by or in
the name of the Company ) with respect to any Company-Owned Intellectual Property.


 


“Securities
Act” means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.


 


“Software”
means all (i) computer programs and other software, including software
implementations of algorithms, models, and methodologies, whether in source
code, object code or other form, including libraries, subroutines and other components
thereof, (ii) computerized Databases, including all data and information included in such
Databases, (iii) screens, user interfaces, command structures, report formats, templates,
menus, buttons and icons, (iv) descriptions, flow-charts, architectures, development
tools, and other materials used to design, plan, organize
and develop any of the foregoing and (v) all documentation,
including development, diagnostic, support, user and training documentation
related to any of the foregoing.


 


“Subsidiary”
of Parent, the Company or any
other Person means any corporation, partnership,
joint venture or other legal entity of which
Parent, the Company or such other Person, as
the case may be (either alone or through or
together with any other Subsidiary), owns, directly or indirectly,
a majority of the stock or other
Equity Interests the holders of which are generally
entitled to vote for the election of
the board of directors or
other governing body of such corporation, partnership, joint venture
or other legal entity, or otherwise owns, directly
or indirectly, such Equity Interests, that would confer control of any
such corporation, partnership, joint venture or other
legal entity, or any Person that would otherwise be deemed
a “subsidiary” under Rule 12b-2 promulgated
under the Exchange Act.


 


“Taxes”
means any and all (i) taxes, fees, levies, duties, tariffs, imposts and other charges
of any kind (together
with any and all interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any Governmental Entity, whether
disputed or not, including income, franchise, windfall or other
profits, gross receipts, property, sales, use, net worth, capital stock, payroll,
employment, social security, national insurance, workers’ compensation, unemployment compensation,
excise, withholding, ad valorem, stamp, transfer, value-added and gains tax and license, registration and documentation fees and (ii)
liability for amounts described under clause (i) above under Treasury
Regulation Section 1.1502-6 (or any similar provision of any
applicable Law), as a result of transferee
or successor liability, by Contract, by law
or otherwise.


 


“Tax
Return” means any report, return (including
information return), claim for refund, election, estimated tax filing, declaration
or similar statement or document relating to
Taxes, including any schedule or attachment thereto,
and including any amendments thereof.


 


“Transfer
Taxes” means all transfer, stamp, documentary and similar Taxes incurred
in connection with the transfer of Shares
pursuant to this Agreement and the transactions
contemplated herein.


 


“Third
Party” shall mean any Person other than Parent, the Purchaser
and their respective affiliates.








“Uncured
Inaccuracy” with respect to a representation or warranty
of a party to the Agreement as of a particular
date shall be deemed to exist
only if such representation or warranty shall be inaccurate
as of such date as if such representation
or warranty were made as of such
date, and the inaccuracy in such
representation or warranty shall not have been
cured since such date; provided, however, that if such
representation or warranty by its terms speaks
as of the date of the Agreement or as
of another specific date, then there shall not
be deemed to be an
Uncured Inaccuracy in such representation
or warranty unless such representation or warranty
shall have been inaccurate as of the date
of the Agreement or such other
specific date, respectively, and the inaccuracy in such
representation or warranty shall not have
been cured since such date.


 


8.5
Terms Defined Elsewhere. The following terms are defined elsewhere in this
Agreement, as indicated below:


 





	“2015 Stock Option Plan”	Section 2.4(a)(iv)
	 	 
	“Action”	Section 3.15(a)
	 	 
	“Agreement”	Preamble
	 	 
	“Alternative Acquisition Agreement”	Section 5.4(b)
	 	 
	“Assumed Company Option”	Section 2.4(a)(ii)
	 	 
	“Assumed RSUs”	Section 2.4(b)(ii)
	 	 
	“Book-Entry Shares”	Section 2.2(b)
	 	 
	“Breakup Fee”	Section 7.2(b)
	 	 
	“Certificate of Merger”	Section 1.5
	 	 
	“Certificates”	Section 2.2(b)
	 	 
	“Closing”	Section 1.5
	 	 
	“Closing Date”	Section 1.5
	 	 
	“Company”	Preamble
	 	 
	“Company Board”	Recitals
	 	 
	“Company Board Recommendation”	Recitals
	 	 
	“Company Bylaws”	Section 3.1(b)
	 	 
	“Company Charter”	Section 3.1(b)
	 	 
	“Company Common Stock”	Section 3.2(a)
	 	 
	“Company Compensation Arrangement”	Section 3.13(g)
	 	 
	“Company Disclosure Schedule”	Article 3
	 	 
	“Company Financial Advisor”	Section 3.23
	 	 
	“Company Material Contract”	Section 3.14(b)
	 	 
	“Company Option”	Section 2.4(a)(i)
	 	 
	“Company Permits”	Section 3.6(a)
	 	 
	“Company Personnel”	Section 3.17(k)
	 	 
	“Company Preferred Stock”	Section 3.2(a)
	 	 
	“Company Representatives”	Section 5.3(a)
	 	 
	“Company RSU”	Section 2.4(b)(ii)
	 	 
	“Company Stock Option Plans”	Section 2.4(a)(i)
	 	 
	“Company Stockholder Approval”	Section 3.26
	 	 
	“Confidentiality Agreement”	Section 5.3(b)
	 	 
	“Contaminants”	Section 3.17(s)
	 	 
	“Continuing Directors”	Section 1.3(a)
	 	 
	“Continuing Employees”	Section 5.11(a)
	 	 
	“Dissenting Shares”	Section 2.3
	 	 
	“DGCL”	Recitals
	 	 
	“DOJ”	Section 5.5(c)
	 	 
	“D&O Insurance”	Section 5.8(c)
	 	 
	“Effective Time”	Section 1.5
	 	 
	“Employment Compensation Arrangement”	Section 3.13(g)
	 	 
	“Exchange Act”	Section 1.1(a)
	 	 
	“Expiration Date”	Section 1.1(d)
	 	 
	“Export Approvals”	Section 3.29(a)
	 	 
	“Fairness Opinion”	Section 3.23
	 	 
	“FTC”	Section 5.5(c)
	 	 
	“Grant Date”	Section 3.2(c)
	 	 
	“Inbound Intellectual Property Contracts"	Section 3.17(b)
	 	 
	“Inclusive Companies”	Section 3.16
	 	 
	“Independent Directors”	Section 1.3(c)
	 	 
	“Initial Expiration Date”	Section 1.1(d)
	 	 
	“Insurance Policies”	Section 3.20
	 	 
	“Key Employee”	Recitals
	 	 
	“Lease Agreements”	Section 3.14(a)
	 	 
	“Leased Real Property”	Section 3.22
	 	 
	“Merger”	Recitals
	 	 
	“Merger Agreement”	Annex I
	 	 
	“Merger Consideration”	Section 2.1(a)
	 	 
	“Minimum Condition”	Section 1.1(a)
	 	 
	“NASDAQ”	Section 1.3(a)
	 	 
	“Non-Competition Agreement”	Recitals
	 	 
	“Non-Personal Information”	Section 3.18(a)
	 	 
	“Option Payments”	Section 2.4(a)(i)
	 	 
	“Order”	Section 3.15(b)
	 	 
	“Outbound Intellectual Property Contracts”	Section 3.17(b)
	 	 
	“Outside Date”	Section 1.1(e)
	 	 
	“Parent”	Preamble
	 	 
	“Parent Representatives”	Section 5.3(a)
	 	 
	“Parent Subsidiary”	Section 4.3
	 	 
	“Privacy Policies”	Section 3.18(a)
	 	 
	“Promissory Note”	Section 1.7(a)
	 	 
	“Proxy Statement”	Section 5.2(a)
	 	 
	“Purchaser”	Preamble
	 	 
	“Purchaser Common Stock”	Section 2.1(c)
	 	 
	“Required Third-Party Consents”	Annex I 
	 	 
	“Required Governmental Approval”	Annex I
	 	 
	“Restricted Share”	Section 2.4(b)(i)
	 	 
	“Sarbanes-Oxley Act”	Section 3.7(a)
	 	 
	“SEC”	Section 1.1(e)
	 	 
	“Section 16”	Section 5.10
	 	 
	“Shares”	Recitals
	 	 
	“Significant Customer”	Section 3.14(e)
	 	 
	“Significant Supplier”	Section 3.14(f)
	 	 
	“Special Meeting”	Section 5.2(b)
	 	 
	“Surviving Corporation”	Section 1.4(a)
	 	 
	“Takeover Statutes”	Section 3.3(b)
	 	 
	“Unscheduled Inbound IP Contracts”	Section 3.17(e)
	 	 
	“Unscheduled Outbound IP Contracts"	Section 3.17(e) 





 


8.6 Headings.The
headings contained in this Agreement
are for reference purposes only and shall not
affect in any way the meaning
or interpretation of this Agreement.


 


8.7 Severability.
If any term or provision
of this Agreement is invalid, illegal
or incapable of being enforced by any
rule of Law or public policy, all
other terms and provisions of this Agreement
shall nevertheless remain in full force and effect so long as
the economic or legal substance of
the transactions contemplated hereby is not affected
in any manner materially adverse to any party.
Upon such determination that any term
or provision is invalid, illegal or incapable
of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement
so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent
possible.


 


8.8
Entire Agreement.This Agreement,
together with the Exhibits, the Company
Disclosure Schedule and the other documents delivered pursuant to this Agreement,
constitute the entire agreement of the parties
and supersede all prior agreements and undertakings, both written
and oral, among the parties, or any of
them, with respect to the subject
matter hereof and thereof.


 


8.9
Assignment. Neither this Agreement
nor any of the rights,
interests or obligations hereunder shall
be assigned by any of the parties
(whether by operation of law
or otherwise) without the prior written consent of
the other parties and any assignment without such prior written consent shall be null and
void.


 


8.10
No Third-Party Beneficiaries.This Agreement shall be binding upon, inure
to the benefit of and be enforceable
by the parties and their respective successors and permitted assigns, and nothing
in this Agreement, express or implied, other
than pursuant to Section 5.8,
is intended to or shall
confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by
reason of this Agreement (including the right
to rely upon the representations and warranties set
forth herein).


 


8.11 Mutual
Drafting; Interpretation. Each party hereto has participated in the drafting
of this Agreement, which each party acknowledges is the result of extensive
negotiations between the parties. If 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 provision. For purposes of this Agreement,
whenever the context requires: the singular
number shall include the plural, and vice versa,
the masculine gender shall include the
feminine and neuter genders, the feminine gender shall
include the masculine and neuter genders and the neuter
gender shall include masculine and feminine genders. As used in this Agreement, the
words “include” and “including,” and variations thereof, shall not
be deemed to be terms of limitation,
but rather shall be deemed to be followed
by the words “without limitation.” Except as otherwise indicated, all references
in this Agreement to “Articles,”
“Sections,” “Exhibits,” “Annexes” and “Schedules” are intended to refer
to Articles and Sections of this Agreement
and Exhibits, Annexes and Schedules to this Agreement. The schedules and exhibits attached
to this Agreement constitute a part
of this Agreement and are incorporated herein for all purposes. The words “hereof,”
“hereto,” “hereby,” “herein,” “hereunder” and words of similar
import, when used in this Agreement, shall refer
to this Agreement as a whole and not
to any particular section or article in which
such words appear. All references in this Agreement
to “$” are references to United
States dollars. Unless otherwise specifically provided for herein, the term “or”
shall not be deemed to be exclusive. To the
extent this Agreement refers to information
or documents to be delivered, provided
or made available to Parent or
the Purchaser, the Company shall be
deemed to have satisfied such obligation if the Company
has delivered, provided or made available such information or document to Parent
in the online data room managed by the Company
in connection with the transactions contemplated
by this Agreement at least one (1)
calendar day prior to the date hereof.


 


		8.12	Governing Law; Consent to Jurisdiction;
Enforcement; Waiver of Trial by Jury.



 


(a)
This Agreement and all claims and causes of action arising out of,
based upon, or related to this Agreement
or the negotiation, execution or performance hereof,
shall be governed by and construed, interpreted
and enforced in accordance with, the
Laws of the State of New York (without regard
to Laws that may be applicable
under conflicts of Laws principles, whether
of the State of New
York or any other jurisdiction).


 


(b)
Any action, claim, suit or proceeding between the parties
hereto arising out of, based upon or relating
to this Agreement or the transactions contemplated
hereby shall be brought solely in the state
or federal court of the County of New York, State
of New York and any state appellate court therefrom within the State
of New York (or,
if the Court of the State of New
York declines to accept jurisdiction over a particular
matter, any state or federal court within the State
of New York, and any direct appellate court therefrom).
Each party hereby irrevocably submits to the exclusive
jurisdiction of such courts in respect
of any such action, claim, suit or proceeding and agrees
that it will not bring
any such action, claim, suit or proceeding
in any other court. Furthermore, each party hereby
irrevocably waives and agrees not to assert as a defense, counterclaim
or otherwise, in any such action, claim, suit
or proceeding, (i) any claim that it is not
personally subject to the jurisdiction of the above
named courts for any reason other than the failure
to serve process in accordance with Section
8.3, (ii) any claim that it or its property
is exempt or immune from jurisdiction of any
such court or from any legal process commenced
in such courts (whether through service of notice,
attachment prior to judgment, attachment in
aid of execution of judgment,
execution of judgment or otherwise) and (iii)
to the fullest extent permitted by applicable Law,
any claim that (A) the action, claim, suit or
proceeding in such court is brought
in an inconvenient forum, (B) the venue of the
action, claim, suit or proceeding is improper
or (C) this Agreement, or the subject
matter hereof, may not be enforced
in or by such courts. Each party agrees that notice
or the service of process in any
action, claim, suit or proceeding arising out of,
based upon or relating to this Agreement or
the transactions contemplated hereby shall be
properly served or delivered
if delivered in the manner contemplated
by Section 8.2 or in such other
manner as may be permitted
by applicable Law.


 


(c)
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW
ANY AND ALL RIGHT SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY
LEGAL ACTION, SUIT OR PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT OF, BASED UPON
OR RELATING TO THIS AGREEMENT OR THE
NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF. EACH OF THE PARTIES (A) CERTIFIES
THAT NO REPRESENTATIVE OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND
THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.12(c).


 


(d)
This Agreement may be executed
in one or more counterparts (including via facsimile,
..pdf or other electronic means), and by the different
parties hereto in separate counterparts, each of which
when executed shall be deemed
to be an original but all of which
taken together shall constitute one and
the same agreement.


 


(e)
The parties hereto agree that if any of
the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise
breached, irreparable damage would occur, no adequate
remedy at law would exist and damages would be difficult
to determine. It is accordingly
agreed that the parties shall be entitled
to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement exclusively
in the state or federal Court of the State
of New York, County of New York and any state appellate
court therefrom within the State of New York
(or, if the Court of the State of New York declines
to accept jurisdiction over a particular matter, any
state or federal court within the State
of New York) and any such injunction
shall be in addition to any other remedy
to which any party is entitled, at law or in
equity. In connection
with any action for specific performance, each party hereby irrevocably waives any requirement
for the securing or posting of any
bond in connection with the remedies referred
to in this Section 8.12.


 


 


ARTICLE
9


SURVIVAL;
INDEMNIFICATION


 


9.1 Survival
of the Representations and Warranties.
The representations and warranties and indemnification obligations of Stockholders and Company
shall survive the Closing Date until the eighteen
(18) months anniversary of the Closing Date;
provided, however, that (i) the representations in Section
3.1 (Organization and Qualification; No Subsidiaries), Section 3,3 (Authority),
Section 3.5 (Required Filings and Consents), Section 3.2 (Capitalization),
Section 3.6 (Permits: Compliance With Law); Section 3.4 (No
Conflict) (together, the “Indefinite Representations”) shall survive
indefinitely and (ii) the representations and warranties set forth in Section
3.9 (Absence of Undisclosed Liabilities), and
Section 3.19 (Tax Matters) shall survive the Closing Date
until the expiration of the period specified
in the applicable statute of limitations (the
“SOL Representations” and, together with the Indefinite
Representations, the “Fundamental Representations”).


 


9.2 Indemnification.




 


(a)
Indemnification by the Stockholders. Each Stockholder agrees (i) severally and
not jointly, to defend, indemnify and hold harmless
Parent and the Surviving Company and its Affiliates
and their respective Affiliates, directors, officers, employees and agents (together, the “Parent
Indemnified Parties”) from, against and in respect of, the full
amount of:








(A) 
any and all Indemnified Losses arising from or in connection
with any breach or violation of any of
the representations and warranties of the Company contained
in this Agreement or (B)
any and all Indemnified Losses arising from or in connection
with any breach or violation of the covenants
or agreements of the Company contained in this
Agreement;


 


(B)  
any and all Indemnified Losses related to or arising from any products delivered
by the Company prior to the Closing Date, including
without limitation, Indemnified Losses for product recalls, product defects, warranty
claims, personal injury or death (which shall exclude any claims which
have specifically been reserved or allowed
for in sufficient amounts to fully cover
the Indemnified Loss prior to the Closing Date);


 


(C) 
any and all Indemnified Losses which relate to
any legal and/or governmental proceedings
which are not set forth on the Disclosure Schedules,
existing on or prior to the Closing Date, and/or
which are brought after the Closing Date
for acts and omissions of the Company, which
occurred prior to the Closing Date; and


 


(ii) 
severally and not jointly, to defend, indemnify and hold harmless
the Parent Indemnified Parties from, against and
in respect of, the full amount of:


 


(A) 
any and all Indemnified Losses arising from or in connection
with any breach or violation of any of
the representations and warranties of such Stockholder
contained in this Agreement or
(B) any and all Indemnified Losses arising from
or in connection with any breach or violation
of the covenants or agreements of such Stockholder
contained in this Agreement; and


 


(B)
any and all capital or other taxes related to or arising
from the sale and transfer of the Shares
owned by such Stockholder contemplated
hereby by reason of any
Liability of for such taxes as assessed by any
taxing authority either before or after the Closing Date.


 


(b)
Indemnification by the Surviving Corporation.Surviving
Corporation agrees to defend, indemnify and
hold harmless the Stockholders and their Affiliates
and their respective directors, officers, employees and agents from, against and in
respect of, the full amount of:


 


(i)
any and all Indemnified Losses arising from or in connection with any breach
or violation of
any of the representations
or warranties of Purchaser or
Parent contained in this Agreement, and


 


(ii)
any and all Indemnified Losses arising from or in connection with any breach
or violation of any
of the covenants or agreements of Purchaser
or Parent contained in this Agreement.


 


(c)
Indemnification Procedure. Any party seeking indemnification under this Agreement
(the “Indemnified Party”) will give prompt written notice to the
party or parties against whom indemnity is
sought (the “Indemnifying Party”) of any
Indemnified Losses which it discovers or of which
it receives notice after the Closing,
stating the nature, basis (including the section
of this Agreement that has been or will
be breached, if any, and the facts
giving rise to the claim that a breach has or will occur), and (to the extent known) amount
thereof; provided, however, that no delay on the part of Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying
Party from any liability hereunder unless (and then solely to the extent) the Indemnifying Party is prejudiced by such delay.


 


(d) Indemnification
Procedure as to Third Party Claims.




 


(i)
Promptly after any Indemnified Party obtains knowledge of the commencement of any third party
claim, action, suit or proceeding or of
the occurrence of any event or
the existence of any state of facts
which may become the basis of a third
party claim (any such claim, action, suit or
proceeding or event or state of facts being
hereinafter referred to in this Section as a “Claim”),
in respect of which an Indemnified Party
is entitled to indemnification under this Agreement,
such Indemnified Party shall promptly notify the Indemnifying
Party of such Claim in writing; provided,
however, that any failure to give notice (A) will not waive any rights
of the Indemnified Party except to the extent
that the rights of the Indemnifying
Party are actually prejudiced thereby and (B) will not relieve the Indemnifying
Party of its obligations as hereinafter provided in this Section
9.2 after such notice is given.
With respect to any Claim as to which such
notice is given by the Indemnified
Party to the Indemnifying Party, the Indemnifying
Party will, subject to the provisions of Section
9.2(d)(ii), assume the defense or otherwise settle such Claim with counsel reasonably
satisfactory to the Indemnified Party and experienced in the conduct
of Claims of that nature at the Indemnifying
Party’s sole risk and expense, provided, however,
that the Indemnified Party (1) shall be permitted
to join the defense and settlement of such Claim
and to employ counsel reasonably satisfactory
to the Indemnifying Party, and at the Indemnified
Party’s own expense, (2) shall cooperate fully with the Indemnifying
Party in the defense and any settlement of such
Claim in any manner reasonably requested
by the Indemnifying Party; and (3) shall
not compromise or settle any such Claim
without the prior written approval of the Indemnifying
Party;


 


(ii)
If (A) the Indemnifying Party fails to assume
the defense of such
Claim or, having assumed the defense and settlement of such
Claim, fails reasonably to contest such Claim in good faith,
or (B) the remedy sought by the claimant with respect
to such Claim is not solely for money damages,
the Indemnified Party, without waiving its right
to indemnification, may, but is not required
to, assume the defense and settlement of such
Claim, provided, however, that (1) the Indemnifying Party shall be permitted
to join in the defense and settlement of such
Claim and to employ counsel at its own expense,
(2) the Indemnifying Party shall cooperate with the Indemnified
Party in the defense and settlement of such
Claim in any manner reasonably requested by the Indemnified
Party, and (3) the Indemnified Party shall not
settle such Claim without the written
consent of the Indemnifying Party, which
consent shall not be unreasonably withheld or
delayed


 


As
used in this Section 9.2, the terms Indemnified
Party and/or Indemnifying Party shall be deemed to include
the plural thereof where the rights
or obligations of more than one Indemnified Party
and/or Indemnifying Party may be involved.








(e)
Tax-Free Indemnification Payments.Allsumspayablebyan
Indemnifying Party as indemnification under this Section 9.2 shall
be paid free and clear of all deductions or
withholdings (including any taxes or governmental charges
of any nature) unless the deduction or withholding
is required by law.


 


(g)Construction
of Representations and Warranties.For
purposes of calculating Indemnified Losses, each of the representations
and warranties that contains any qualifications as to materiality or Material Adverse Effect
or similar language shall
be deemed to have been given as though
there were no such qualifications for the purpose
of determining the amount of Indemnifiable
Losses resulting from the breach of such representation and warranty, and any such
qualifications shall be disregarded for such
purpose of this Article 9.


 


 9.3 Limitations on Liabilities.




 


Notwithstanding
anything to the contrary contained herein, (i) other than with
respect to a breach of a Fundamental Representation, no party
shall be obligated to indemnify and hold
harmless any other under Section 9.2 for breaches
of representations and warranties unless and until all
Indemnified Losses in respect of which
such party is obligated to provide indemnification
exceed Fifty Thousand Dollars (US$50,000) (the “Basket Amount”) following which (subject to the provisions
of this Section 9.3) such party shall be obligated
to indemnify and hold harmless, the other
party for all such Indemnified Losses in excess of the Basket
Amount; provided however that the Basket Amount shall not apply
to indemnity obligations for Indemnified Losses arising as a result
of fraud. In addition, no individual claim for Indemnified
Loss shall count toward the Basket Amount unless it exceeds
ten thousand dollars ($10,000) ("De Minimus Amount"),
following which the full amount of such individual claim for Indemnified Loss shall
be aggregated together with other claims for
Indemnified Losses exceeding the De Minimus Amount
for purposes of calculating the Basket Amount.
(ii) other than with respect to breaches
of a Fundamental Representations, fraud, gross negligence and willful misconduct, the Stockholders
shall not be obligated to indemnify and
hold harmless the Purchaser Indemnified Parties under
Section 9.2 for breaches of representations
and warranties in an amount in excess
of the Escrow Shares; and (iii) each Stockholder’s
maximum liability for indemnification of Purchaser Indemnified Parties hereunder for breaches
of representations and warranties shall not exceed
such Stockholder’s pro rata amount of the Merger
Consideration actually received by such Stockholder.


 


(a)
Notwithstanding anything to the contrary set forth herein,
none of the limitations on indemnification
set forth in this Section 9.3 shall apply
to matters relating to intentional or fraudulent
breaches or violations.


 


(b)
Each party waives on behalf of itself
and the other Indemnified Parties claiming through such parties, any right to multiply
actual damages or to recover
consequential, indirect, special, punitive or exemplary damages (including, without
limitation, damages for lost profits or loss of business
opportunity) arising in connection with or with
respect to the indemnification provisions hereof.


 


(c)
Each Indemnified Party entitled to indemnification
hereunder shall take reasonable steps to mitigate all losses, costs, expenses and
damages after becoming aware of any
event which could reasonably be expected to give rise to any Losses that are indemnifiable or recoverable hereunder.


 


9.4
Insurance Benefits.The amount of Indemnified
Losses recoverable by any Indemnified Party under
this Agreement with respect to an indemnity claim shall
be reduced by the amount of any payment actually
received by or on behalf of any Indemnified
Party from any insurance policy net of any deductibles or other
reasonable amounts payable with respect thereto.


 


9.5
Tax Benefits.The amount of Indemnified
Losses recoverable by any indemnified party
shall be reduced by the amount
of any tax benefit realized by the indemnified party
in the form of a refund or reduction in taxes
payable as a result of such Indemnified Losses.


 


9.6
Exclusive Remedy. The indemnification rights provided in this Article
9 and Parent and Surviving Corporations rights pursuant to Section
9.2 shall be the sole and exclusive remedy available
to Parent Indemnified Parties and each of them for
any Indemnified Losses related to a breach of any of the terms,
conditions, covenants, agreements, representations or warranties contained herein
or in any other agreement,
certificate, instrument or document or any right, claim or action
arising from the transactions contemplated hereunder or thereunder,
and each such party hereby waives, to the fullest
extent permitted by applicable Laws, any other rights or remedies
that may arise under any applicable Laws; provided, that
this exclusive remedy for damages shall not preclude
any Party from bringing an action for specific performance, injunctive relief or any
other equitable remedy to require a Party
to perform its obligations under this Agreement.


 


 


 


[signature
page follows]




    	 



    	 



    

 


 


IN
WITNESS WHEREOF, Parent, the Purchaser and the Company
have caused this Agreement to be executed as
of the date first written above by their respective
officers thereunto duly authorized.


 


RED CAT HOLDINGS,
INC.


 


By:
/s/ Jeffrey Thompson


Name:
Jeffrey Thompson 


Title:Chief
Executive Officer


 


TEAL
ACQUISITION CORP.


 


By:
/s/ Jeffrey Thompson


Name:
Jeffrey Thompson


Title:Chief
Executive Officer


 


TEAL
DRONES, INC.


 


By:
/s/ George Matus


Name:
George Matus


Title:Chief
Executive Officer