Exhibit 10.4

	
	
151014726v5
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (including  the schedules, annexes and exhibits
hereto, this “Agreement”), dated  as of November 12, 2021,  is entered into by and among DFP
Healthcare Acquisitions  Corp., a Delaware corporation  (the “Company”), Deerfield Private
Design  Fund  IV, L.P. (“DPD IV”), Deerfield Partners, L.P. (“DP” and together with DPD IV, the
 “Deerfield Holders” and each a “Deerfield Holder”) and DFP Sponsor LLC (“Sponsor” and,
together with DPD IV and DP, the “Holde rs” and each a “Holder”).
RECITALS:
A. Each Holder  owns (i) the number  of shares (with  respect to each Holder,  its
 “Owned Common Shares”) of Class A common  stock, par value $0.0001  per share (the “Class
A Common Stock”) and/or Class B common stock, par value $0.0001 per share (the “Class B
Common Stock”) set forth opposite  such Holder’s name on Schedule A hereto, and (ii) warrants
(with respect to each Holder, its “Warrants”)  to purchase the number  of additional shares of Class
A Common  Stock set forth opposite  such Holder’s name on Schedule A hereto.
B. On June 28, 2021,  the Company  entered into an Agreement and Plan of
Merger, with Orion Merger Sub I, Inc., Orion  Merger Sub  II, LLC and TOI Parent, Inc., (without
giving  effect to any material amendment, waiver or modification  thereto, the “Me rger
Agreement”).
C. Concurrently  with  the execution  of the Merger Agreement, the Company
entered into  subscription  agreements with  institutional  and accredited investors  (the “PIPE
Investors”), including the Deerfield Holders, pursuant to which the PIPE Investors agreed to
purchase, immediately  prior  to the closing of the Mergers (as defined  in  the Merger Agreement),
an aggregate of 27,500,000 shares of Class A Common  Stock  of the Company (or a number  shares
of Series A Common Equivalent  Preferred Stock (as defined  below) convertible into 27,500,000
shares of Class A Common  Stock) for an aggregate gross purchase price of $275,000,000  (the
 “PIPE Transaction”).  Each Deerfield Holder entered into  a subscription  agreement, dated as of
June 28, 2021 (together, the “Subscription Agreements”), with the Company, pursuant to which,
and subject to the terms thereof, (i) DP agreed to purchase from the Company,  and the Company
agreed to sell to DP, 5,000,000  shares of Class A Common  Stock  of the Company (or a number
shares of Series A Common  Equivalent  Preferred Stock convertible  into  5,000,000  shares of Class
A Common  Stock)  and (ii) DPD IV agreed to purchase from  the Company,  and the Company
agreed to sell to DPD IV, 5,000,000  shares of Class A Common  Stock of the Company (or a
number  shares of Series  A Common  Equivalent  Preferred Stock convertible  into  5,000,000  shares
of Class A Common  Stock) (the shares to be purchased by the Deerfield  Holders, including  any
Series A Common  Equivalent  Preferred Stock,  collectively,  the “Deerfield PIPE  Shares”), in
each case, in the PIPE Transaction. Each Deerfield Holder intends to purchase its Deerfield PIPE
Shares in the form of Series A Common  Equivalent  Preferred Stock.
D. In connection with the execution and delivery of the Merger Agreement, the
Company  and each Holder  entered into  that certain consent and waiver letter,  dated as of June 28,
2021  (the “Letter Agreement”), pursuant to which the Company  and each Holder agreed, among
other things,  to negotiate and enter into an agreement that provides  for the exchange of a number 





	
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of shares of Class A Common  Stock and Class B Common  Stock beneficially  owned by such
Holder such that,  immediately  following  the consummation  of the Mergers and the PIPE
Transaction,  including  the issuance of the Deerfield  PIPE Shares in  connection  therewith, the
Holders and their affiliates will  collectively  beneficially  own a number  of shares of Class A
Common  Stock  that represents 4.5% of the then outstanding  shares of Class A Common  Stock,  for
shares of a Series A Common  Equivalent  Preferred Stock.
E. Prior to the date hereof, each Holder delivered  written notice to the
Company  whereby such Holder elected to be subject to Section  3.3.5 of the Warrant Agreement
(the “Warrant Agre e me nt”) between the Company  and Continental  Stock Transfer & Trust
Company  (which governs  the terms of the Warrants) with  a Maximum  Percentage (as defined  in
the Warrant Agreement) of 4.9%.
F. The board of directors of the Company  (the “Board of Dire ctors”) has
authorized the creation  of a new series of preferred stock denominated  as Series A Common  Stock
Equivalent Convertible  Preferred Stock  (the “Series A Common Equivalent Preferred Stock”)
with the preferences, rights and limitations  described in the Certificate of Designation  of
Preferences, Rights  and Limitations  of the Series  A Common  Equivalent  Preferred Stock, in the
form attached hereto as Exhibit A (the “Certificate of  Designation”).
G. As contemplated  by  the Letter Agreement, pursuant to this Agreement (and
subject to the terms and conditions  hereof), in accordance with Section 3(a)(9) of the Securities
Act of 1933,  as amended (the “Securities Act”), each Holder will  exchange the number of its
Owned Common  Shares (with the specific Owned Common  Shares, including  the date or dates of
issuance thereof, to be as designated  by each Holder prior  to the Effective Time (as defined below))
(the “Exchanged Common Shares”) set forth opposite  such Holder’s name on Schedule B hereto
for the number  of shares (the “Pre fe rre d Share s”) of Series A Common  Equivalent  Preferred
Stock set forth opposite  such Holders name on Schedule B hereto, which  Preferred Shares shall be
convertible from time to time by the holder thereof into shares of Common  Stock (the “Conversion
Shares”) in  accordance with  the Certificate  of Designation.
H. In connection  with the closing  of the Mergers, the Company,  the Holders
and the other parties to the Registration  Rights  Agreement, dated as of March 10, 2020 (the
 “Existing RRA”) will  enter into  an Amended and Restated Registration  Rights  Agreement (the
 “A&R RRA”).
NOW, THEREFORE, in  consideration  of the foregoing  and the mutual  covenants
and agreements contained herein, and other good and valuable consideration,  the receipt and
sufficiency  of which are hereby acknowledged,  the parties hereto, intending  to be legally  bound,
agree as follows:
ARTICLE I.
EXCHANGE; CLOSING
Section 1.01. Exchange.  Upon the terms, and subject to the satisfaction (or waiver) of the
conditions  set forth in Article IV, at the Closing  (as defined below), each Holder and the Company
hereby agree to exchange the number  of Exchanged  Common  Shares set forth  opposite  such 





	
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Holder’s name on Schedule B for the number  of Preferred Shares set forth  opposite  such  Holder’s
name on Schedule B (the “Exchange”).   The Company  hereby acknowledges  and agrees that the
specific Owned Common  Shares exchanged  hereunder, including  the date or dates of issuance
thereof, shall be as designated  by each Holder prior to the Effective Time.
Section 1.02. Closing and Settlement.
(a) Subject to the satisfaction (or waiver) of the conditions  set forth in Article
IV, the closing  of the Exchange (the “Closing”) shall  occur immediately  prior  to the consummation
of the Mergers and the PIPE Transactions (the “Effective Time”).  At the Closing:
(i) each Holder shall  deliver  or cause to be delivered  to the Company
or its  transfer agent a duly  executed stock power,  transfer agent instructions or other
customary documents  of conveyance or transfer, which shall  transfer such  Holder’s
Exchanged Common  Shares to the Company, or shall otherwise transmit (or cause its prime
broker to transmit for such Holder’s account) such Holder’s Exchanged Common Shares
to the Company through The Depository Trust Company’s Deposit/Withdrawal at
Custodian  (DWAC) system, in each case, free and clear of any mortgage,  lien,  pledge,
charge, security interest,  encumbrance, title  retention agreement, option,  equity  or other
adverse claim,  limitat ion  or restriction thereto (collectively, “Liens”) other than  Permitted
Liens (as defined below); and
(ii) (A) the Company shall issue to each Holder or its designee such
Holder’s  Preferred Shares, and (B) the Company shall deliver to each Holder (or its
designee) stock certificates, duly  executed on behalf of the Company, representing such
Holder’s Preferred Shares.
(b) Effective as of the Effective Time, (i) each Holder shall be deemed for all
corporate purposes  to have become the legal,  beneficial  and record holder  of the Preferred Shares
entitled to exercise all rights (including  conversion rights) as a holder thereof and (ii) the
Exchanged Common Shares held by such Holder shall be deemed cancelled and retired, in  each
case, without  any further action by any party, regardless of when the Exchanged Common Shares
are actually  delivered  or surrendered to the Company  or its transfer agent, or the Preferred Shares
are issued and delivered to such Holder.
(c) Effective as of the Effective Time, each Holder shall,  automatically  and
irrevocably,  without  any further action  by any party, surrender all  voting  rights  in respect of the
Exchanged Common Shares (but not, for the avoidance of doubt,  any other Owned Common
Shares, any Conversion  Shares that are issued following  the Closing  upon conversion or exercise,
as applicable, of any Preferred Shares or other securities held by the Holder as of the Effective
Time).  From and after the Closing,  (i) the Holder shall not vote, and shall not be entitled  to vote,
any of the Exchanged  Common  Shares at any meeting  of stockholders, or in connection with any
written consent of stockholders,  with respect to any matter and (ii) the Exchanged Common  Shares
shall  not be considered present or entitled  to vote or otherwise accounted for in connection  with
any meeting or vote that occurs following  the Closing  (including  for purposes  of determining  the
presence or absence of a quorum  or the minimum  vote required to approve any matter) regardless
of whether the record date in  respect of such meeting  or written  consent preceded the date of this 





	
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Agreement.  The Company  acknowledges  and confirms  that it has not set a record date for any
special meeting  or any other meeting  of stockholders  (or for purposes of determining  stockholders
entitled  to consent to any matter in writing)  to be held following  the consummation  of the Mergers,
and covenants and agrees that it shall  use its reasonable best efforts to not fix a record date for any
such meeting  of its stockholders  with respect to which a record date has not already been set until
the Exchange has become effective, unless the Exchange shall not have become effective as a
result of a Holder’s willful  breach of this Agreement.
Section 1.03. Registration Rights Agreement.  Notwithstanding  anything  to the contrary
contained  herein, the Conversion  Shares issuable  upon the conversion  of the Preferred Shares,
shall  be entitled  to the rights,  privileges  and benefits,  and shall  be subject  to the limitations ,
applicable  to the Exchanged Common  Shares pursuant to the Existing  RRA, as the same shall  be
amended and restated in  accordance with  the A&R RRA.  Without limiting the foregoing, the
Company acknowledges and agrees that the Conversion Shares shall constitute “Registrable
Securities”  within  the meaning  of the A&R RRA.
Section 1.04. Continuing  Lockup Restrictions.  Each Holder acknowledges and agrees
that, commencing  on the date of the Closing  (the “Closing Date”), the Preferred Shares issued  in
exchange for shares of Class B Common  Stock issued  to the Sponsor  (the “Founder Shares”),
together with any Conversion Shares (as defined  below)  issued upon  the conversion  of such
Preferred Shares, shall  be subject to the lock-up  provisions  set forth  in the Amended and Restated
Bylaws of the Company,  the form of which is attached hereto as Exhibit B  (the “A&R Bylaws”)
and which are to be adopted by the Company and effective as of the consummation  of the Mergers.
The parties hereto acknowledge and agree that nothing  contained in this Agreement is intended to
limit,  expand or otherwise modify  or affect the restrictions  on transfer set forth  in  the A&R Bylaws.
For the avoidance of doubt, the restrictions on transfer set forth in the A&R Bylaws shall not be
applicable  to any Preferred Shares issued hereunder in exchange for any Exchanged Common
Shares other than the Founder  Shares (or any Conversion  Shares issued upon  the conversion  of
such Preferred Shares).
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.01. Representations and Warranties of the Holders.  Each Holder, severally and
not jointly,  hereby represents and warrants to the Company  as of the date of this  Agreement and
as of the  Effective Time  as follows:
(a) Incorporation  and Authority.  Such Holder is duly organized,  validly
existing  and in good standing  under the Laws of its jurisdiction  of organization.   Such Holder has
all requisite limited partnership or limited  liability  company, as applicable,  power to enter into,
consummate the transactions contemplated by, and carry out its obligations  under this Agreement.
The execution  and delivery  by such Holder of this Agreement and the consummation by such
Holder of the transactions contemplated  by this Agreement have been duly authorized  by all
requisite limited liability company, limited partnership or other similar  organizational  action on
the part of such Holder.  This Agreement has been duly executed and delivered  by such Holder.
Assuming  due authorization,  execution  and delivery  by the other parties hereto, this Agreement 





	
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constitutes the legal,  valid  and binding  obligation  of such Holder, enforceable against it in
accordance with its terms, subject in each case to the effect of any applicable  bankruptcy,
reorganization,  insolvency,  moratorium  or similar  Laws now or hereafter in  effect relating  to  or
affecting creditors’ rights and remedies generally and subject, as to enforceability,  to the effect of
general equitable  principles  (regardless of whether enforcement is sought in a proceeding  in equity
or at law).
(b) Non-Contravention.
(i) Neither the execution,  delivery  and performance by the Holder of
this Agreement, nor the consummation  of the transactions contemplated hereby, nor
compliance by such Holder with any of the provisions  hereof or thereof,  will  (A) viola t e ,
conflict  with, or result in a breach of any provision  of, or constitute a default (or an event
which,  with notice or lapse of time or both, would constitute a default) under, or result in
the termination  of, or accelerate the performance required by, or result in a right  of
termination  or acceleration of, or result in the creation of any Lien upon any of the
properties  or  assets of such Holder under any of the terms, conditions  or provisions  of (i)
its governing  instruments  or (ii)  any note, bond,  mortgage, indenture,  deed of trust, license,
lease, agreement or other instrument  or obligation  to which such Holder is a party or by
which it may be bound,  or to which such Holder or any of the properties  or assets of such
Holder may be subject,  or (B) subject  to compliance  with the statutes and regulations
referred to in the next paragraph, violate  any Law, statute, ordinance,  rule or regulation,
permit,  concession,  grant, franchise or any judgment,  ruling,  order, writ, injunction  or
decree applicable  to such Holder or any of their respective properties  or assets, except in
the case of clauses (A)(ii)  and (B) for such violations,  conflicts  and breaches as would  not
reasonably  be expected to materially  and adversely affect such Holder’s ability  to perform
its respective obligations  under this Agreement or consummate the transactions
contemplated hereby on a timely basis.
(ii) Other than filings  with the SEC which may be required under
Section 16, Section 13(d) or Section 13(f) of the Securities and Exchange Act of 1934, as
amended (the “Exchange Act”), on the part of such Holder and other persons that may be
deemed to beneficially  own the Exchanged Common Shares or the Preferred Shares, no
notice to, registration,  declaration or filing  with, exemption  or review by, or authorization ,
order, consent or approval of, any Governmental  Entity (as defined below), nor expiration
or termination  of any statutory waiting  period,  is necessary for the consummation  by such
Holder of the transactions contemplated  by this  Agreement.
(c) Ownership of the Exchanged Common  Shares.  Such Holder owns of record
and beneficially (as such term is defined  in  Rule 13d-3  under the Exchange Act) all of its
Exchanged Common Shares free and clear of all Liens, other than Permitted Liens.   Except
pursuant to this Agreement, the Existing  RRA, the Letter Agreement, the Sponsor Letter
Agreement and the Stockholder  Support Agreement (as defined in  the Merger Agreement), there
are no options,  warrants or other rights,  agreements, arrangements or commitments  of any
character to which such Holder is a party relating  to the pledge,  disposition  or voting  of any of the
Exchanged Common Shares with respect to or otherwise affecting the matters covered herein and
there are no voting  trusts or voting  agreements with  respect to the Exchanged Common Shares 





	
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with  respect to or otherwise  affecting  the matters covered herein.  Upon delivery of the Exchanged
Common Shares to the Company, such Holder will  convey, or cause to be conveyed,  to the
Company good,  valid  and marketable title  to the Exchanged Common  Shares, free and clear of all
Liens other than Permitted Liens.
(d) Brokers and Finders. No broker,  finder or investment banker is entitled to
any brokerage,  finder’s or other fee or commission  in connection  with  the consummation  of the
transactions contemplated  by this Agreement based upon  arrangements made by or on behalf  of
such Holder.
Section 2.02. Representations  and Warranties of the Company.  The Company  hereby
represents and warrants to each Holder  as of the date of this  Agreement and as of the Effective
Time as follows:
(a) Incorporation  and Authority.
(i) The Company is duly organized, validly existing and in good
standing under the Laws of the State of Delaware.  The Company  has all requisite  corporate
or other applicable  organizational  power to (i) enter into,  consummate the transactions
contemplated  by,  and carry out its obligations  under this  Agreement, the Certificate of
Designation,  and each other agreement, document,  instrument,  schedule or certificate
contemplated  by this Agreement to be executed by the Company in connection with or as
a condition  to each Holder’s obligation  to consummate the transactions contemplated
hereunder (the “Ancillary Documents”), including  the issuance of the Preferred Shares
hereunder and the issuance of the Conversion  Shares in  accordance with the Certificate  of
Designation,  and (ii)  own, lease and operate its properties  and carry on its business as
presently conducted, and the Company is duly  qualified  to do business and is in good
standing  in all  jurisdictions  where its ownership  or leasing  of property or the conduct of its
business requires it to be so qualified,  except for any failure under clause (ii)  that would
not,  individually  or in  the aggregate, reasonably  be expected to have a Company  Material
Adverse Effect (as defined  below).
(ii) The execution  and delivery  by the Company  of this  Agreement and
each Ancillary  Document, and the consummation  by the Company of the transactions
contemplated  by this Agreement and the Ancillary  Documents have been duly authorized
by all requisite  corporate or other similar  organizational  action on the part of the Company.
Without  limiting  the foregoing, no stockholder approval is required in connection with the
execution and delivery  of this Agreement or any Ancillary  Document, or the consummation
of the transactions contemplated  hereby or thereby (including  the issuance of the Preferred
Shares and all  of the Conversion Shares issuable upon conversion thereof), including  any
stockholder  approval  that would  be necessary to remain in compliance  with the rules of the
Nasdaq Stock  Market LLC (“Nasdaq”) or required under the rules and regulations  of the
SEC or the General Corporation  Law of the State of Delaware.  This Agreement has been,
and each Ancillary  Document will  be, duly  executed and delivered  by the Company.
Assuming  due authorization,  execution and delivery  by the other parties hereto, this
Agreement constitutes,  and each of the Ancillary  Documents will  constitute, the legal,  valid
and binding  obligations of the Company,  enforceable against the Company in accordance 





	
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with their respective terms, subject  in  each case to the effect of any  applicable  bankruptcy,
reorganization,  insolvency,  moratorium  or similar  Laws now or hereafter in effect relating
to or affecting creditors’ rights  and remedies generally  and subject,  as to enforceability,  to
the effect of general equitable principles  (regardless of whether enforcement is sought  in a
proceeding  in  equity  or at law).
(iii) Neither the execution  and delivery  by the Company  of this
Agreement and  each Ancillary  Document,  nor the consummation  of the transactions
contemplated hereby or thereby, nor compliance  by the Company  with any of the
provisions  hereof or thereof will (a) violate or conflict with the organizational  documents
of the Company,  (b) conflict  with  or violate  any Law applicable  to the Company or by
which any of its properties or assets is bound  or subject or (c) result in any breach of, or
constitute  a default (or event which,  with the giving  of notice or lapse of time or both,
would  constitute  a default) under,  or give to any person any rights  of termination,
acceleration  or cancellation  of or result in  the creation  of any Lien  on any of the assets or
properties of the Company,  any note, bond,  mortgage, indenture,  deed of trust, license,
lease, agreement or other instrument  or obligation  to which the Company  or any of its
subsidiaries  is a party or by which any of them or any of their respective properties or assets
is bound  or subject,  except, in the case of clauses (b) and (c), for any such conflicts,
violations,  breaches, defaults, terminations,  accelerations, cancellations  or creations as,
individually  or in the aggregate, would not reasonably be expected to have a Company
Material Adverse Effect.  The execution and delivery  of this Agreement and the issuance
(directly  or indirectly)  of Preferred Shares and the Conversion  Shares is not, and will  not
be, subject to, or trigger,  any preemptive  rights,  rights of first refusal, rights of first offer,
notice rights, approval/consent rights, voting rights, review rights or similar rights of any
third party and will  not trigger  any price reset or anti-dilut ion rights.
(iv) Except for the filing  of the Announcing  Form 8-K (as defined
below),  compliance  with any applicable  state securities or blue sky laws and the filing  of
the Certificate of Designation  with  the Secretary of State of the State of Delaware, no
consent or approval  of, or filing  or registration  with,  any Governmental  Entity  is necessary
for the execution,  delivery  and performance by the Company  of this Agreement or the
Ancillary  Documents, other than such other consents, approvals,  filings  or registrations
that, if not obtained,  made or given,  would  not, individually  or in the aggregate, be material
to the Company  and its subsidiaries,  taken as a whole.
(b) Sale of Securities.  The offer, issuance and sale of the Preferred Shares
pursuant to this Agreement and the Conversion  Shares in accordance with the Certificate of
Designation are exempt from the registration  and prospectus delivery  requirements  of the
Securities  Act and the rules  and regulations  promulgated  thereunder pursuant to Section 3(a)(9) of
the Securities Act.  Neither the Company nor, to the Knowledge of the Company,  any person acting
on its behalf,  has made any offers or sales of any security  or solicited  any offers to buy any security,
under circumstances that would cause the offering or issuance of the Preferred Shares under this
Agreement or the Conversion  Shares under the Certificate of Designation  to be integrated  with
prior offerings  by the Company,  and the Company covenants and agrees that, following  the date
hereof, it will  not take any action  or steps that would  cause the offering  or issuance of the Preferred
Shares under this  Agreement or the Conversion  Shares under  the Certificate of Designation  to be 





	
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integrated with other offerings, in each case, for purposes of (i) the Securities Act that would  result
in any applicable  exemption  from registration  under the Securities Act not being available  for the
offer, sale or issuance of the Preferred Shares or the Conversion  Shares or (ii) the stockholder
approval  provisions  of Nasdaq. Neither the Company  nor any other person acting on its behalf has
paid any commission  or remuneration  that would  render the exemption  from registration  under
Section 3(a)(9) under the Securities  Act unavailable  in connection  with the issuance of the
Preferred Shares or  any Conversion  Shares.
(c) Shares.  The Preferred Shares to be delivered  to each Holder hereunder and
the Conversion  Shares have been duly  authorized  and, when issued pursuant  to this Agreement or
the Certificate of Designation,  as applicable,  shall  be validly  issued, fully  paid  and non-assessable
and not subject to pre-emptive rights created by statute, the bylaws of the Company  (as amended
or modified  from time  to time prior  to the Effective Time,  the “Bylaws”) or the certificate of
incorporation  of the Company  (as amended or modified  from time  to time prior  to the date
Effective Time, the “Certificate of Incorporation”) or any contract to which the Company  is a
party or is otherwise bound.  As of the Effective Time, the Company  shall have the right,  authority
and power to issue, assign and deliver the Preferred Shares and any Conversion  Shares to each
Holder.  Upon delivery  of such Preferred Shares and any Conversion  Shares to each Holder, such
Holder shall acquire good,  valid  and marketable title  to the Preferred Shares or Conversion  Shares,
as applicable,  free and clear of all Liens, other than restrictions  on transfer imposed  by applicable
securities  Laws or  the  A&R Bylaws. The Company has reserved from its duly authorized capital
stock 6,351,000 shares of Common Stock for issuance hereafter upon  conversion  of the Preferred
Shares (provided,  in  any event,  that immediately  following  the consummation  of the Mergers the
Company  shall  have reserved from its duly  authorized  capital stock an a number of shares of
Common  Stock sufficient  to satisfy the conversion in full  of all outstanding  Preferred Shares
(without  giving  effect to the Beneficial  Ownership Cap (as defined in  the Certificate of
Designation)  and taking  into  account the forfeiture of Preferred Shares by the Sponsor  in
connection  with  the Mergers), as well as 10,000,000 shares of Common  Stock for issuance upon
conversion  of the Deerfield PIPE Shares.
(d) Capitalization.
(i) The total number  of shares of all classes of capital stock which the
Company  is authorized  to issue is 111,000,000 shares, which  consists  of (a) 110,000,0 00
shares of common  stock, par value $0.0001  per share, comprised  of 100,000,000  shares of
Class A Common  Stock and 10,000,000  shares of Class B Common  Stock and (b)
1,000,000  shares of preferred stock, par value $0.0001 per share (“Pre fe rre d Stock”), of
which 175,000 shares are and immediately  following  the Effective Time shall be,
designated  and authorized  as Series A Common  Equivalent  Preferred Stock.  Schedule
2.02(d) to this  Agreement  sets forth  the capitalization  of the Company  as of the date hereof,
including  the number  of shares of Common  Stock and Preferred Stock:  (i) issued and
outstanding; (ii) issuable  upon exercise or conversion  of options,  warrants, restricted unit
awards, purchase rights,  indebtedness  and other securities,  in each case, whether or not
vested; (iii) reserved for issuance (directly  or indirectly)  pursuant to any equity  incentive
plans.  All of the issued and outstanding  shares of Common  Stock have been duly
authorized  and validly  issued and are fully  paid,  nonassessable and free of preemptive  or 





	
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similar rights. The Company does not have outstanding  stockholder purchase rights or
 “poison  pill”  or any similar  arrangement in effect.
(ii) No bonds, debentures, notes or other indebtedness  having  the right
to vote (or convertible  into or exchangeable for, securities having  the right to vote) on any
matters on which the stockholders  of the Company  may vote (“Voting Debt”) are issued
and outstanding. Except as set forth in Schedule 2.02(d), the Company does not have and
is not bound by any outstanding  options,  preemptive  rights,  rights  of first offer, warrants,
calls,  commitments  or other rights  or agreements calling  for the purchase, sale or issuance
of, or securities or rights convertible  into,  or exchangeable for, any shares of Common
Stock,  Preferred Stock or any other equity  securities  of the Company  or Voting  Debt or
any securities representing  the right  to purchase or otherwise  receive any shares of capital
stock of the Company  (including  any rights  plan or agreement).
(e) Brokers and Finders. No broker,  finder or investment  banker is entitled  to
any brokerage,  finder’s or other fee or commission  in connection  with  the consummation  of the
transactions contemplated  by this Agreement based upon  arrangements made by or on behalf  of
the Company  or its Affiliates.
(f) Anti-Takeover Provisions. The Company  and its board of directors have
taken all necessary action,  if any, in order to render inapplicable  any “control  share acquisition,”
 “interested stockholder,” “business combination,”  “fair price,” “moratorium,”  or other similar  anti-
takeover provision  under the Certificate of Incorporation,  Bylaws or other organizationa l
documents  or the Laws of the State of  Delaware which  is  applicable  to  each Holder  as a result  of
the consummation  of the transactions contemplated  by this  Agreement and the Ancillary
Documents in the manner contemplated  hereby and thereby, including  the Company’s  issuance of
the Preferred Shares and the Conversion  Shares and each Holder’s ownership of the Preferred
Shares and the Conversion  Shares.
(g) Investment Company Status. Neither the Company  nor any of its
subsidiaries  in an “investment  company,” and, to the Company’s Knowledge,  neither the Company
nor any of its subsidiaries  is a company controlled  by an “investment  company” or an “affiliated
person” of, or “promoter” or “principal  underwriter” for, an “investment  company” as such terms
are defined in the Investment Company Act of 1940, as amended.
(h) Certificate of Designation.   The Certificate of Designation  has been filed
with  the Secretary of State of the State of Delaware, has become effective and has not have been
rescinded or revoked.
ARTICLE III.
COVENANTS
Section 3.01. Reservation  of Shares.  On and after the date hereof, the Company  shall  at
all times reserve and keep available,  free of preemptive  or similar  rights,  a sufficient  number  of
shares of Common  Stock for the purpose of enabling  the Company to issue all of the Conversion
Shares pursuant to the Certificate of Designation  (without  regard to the Beneficial  Ownership Cap
). 





	
	10


Section 3.02. Certain Stockholders’ Rights Plans.  At any time  that any Preferred Shares
or Conversion  Shares remain outstanding,  the Company shall  not adopt any stockholder  rights
agreement, “poison pill” or similar anti-takeover agreement or plan that is applicable  to each
Holder unless the Company  has excluded  each Holder  from the definition  of “acquiring  person”
(or such similar  term) as such term is defined in such anti-takeover agreement to the extent of such
Holder’s beneficial  ownership  of Preferred Stock or Common  Stock owned as of the date any such
agreement or plan  is adopted by the Company.
Section 3.03. Blue Sky Filings.   The Company shall make all filings,  if any, under
applicable securities  or “Blue  Sky” Laws of  the states of the United  States as shall  be necessary in
connection  with the offering  and sale of the Preferred Shares and the Conversion  Shares.
Section 3.04. Listing. At or prior  to the Closing,  the Company  shall timely submit a duly
completed Listing of Additional  Shares Notification  Form (together with all requisite supporting
documentation)  to Nasdaq covering  the Conversion  Shares.
Section 3.05. No Exchange Act Registration.  For  so long  as any Preferred Shares remain
outstanding,  the Company  shall not register, or permit the registration of, the Series A Common
Equivalent  Preferred Stock under the Exchange Act.
Section 3.06. Disclosure.  At or prior  to 5:30 p.m. (New York City time) on the fourth
business  day following  the date hereof, the Company shall file with the SEC one or more Forms
8-K describing  the terms of the transactions  contemplated  by this  Agreement and the Ancillary
Documents,  and including  as exhibits  to such Form(s) 8-K this Agreement and the form of
Certificate of Designation,  without  redaction (including  all schedules, exhibits,  appendices hereto
and thereto) (such Form or Forms 8-K, collectively,  the “Announcing Form 8-K”).
Section 3.07. No Additional  Issuances.  From and after the filing  of the Certificate of
Designation  with the Secretary of State of the State of Delaware, without  the prior written consent
of the Deerfield Holders, except for the issuance of the PIPE Shares to the Deerfield Holders and
any other issuances of Series A Common  Equivalent  Preferred Stock to the Holders and their
respective Affiliates,  the Company shall not issue or agree to issue any shares of Series A Common
Equivalent  Preferred Stock other than pursuant  to this  Agreement.
Section 3.08. Certain  Securities  Law Matters.
(a) The Company  represents, warrants, acknowledges  and agrees that (i) for
purposes of Rule 144 under the Securities  Act, each Holder’s holding  period  for the Securitie s ,
shall  be deemed to have commenced on the date such Holder acquired the Exchanged Common
Shares from the Company  or an affiliate  of the Company  (or such earlier date as may be permitted
pursuant to Rule 144 under the Securities Act) and, (ii)  Preferred Shares issued to any Holder in
exchange for any Exchanged Common Shares that are not “restricted securities” (within  the
meaning  of Rule 144 under the Securities Act) immediately  prior  to the Effective Time, including,
for the avoidance of doubt,  Exchanged Common  Shares acquired by a Holder in the Company’s
initial public offering, together with the Conversion  Shares issuable upon the conversion  of such
Preferred Shares, shall  take on the registered/unrestricted  character of such Exchanged Common 





	
	11


Shares and the Unrestricted Condition  specified in  clause (A) of Section 6(d)(ii)  of the Certificate
of Designation  shall  be deemed to have been satisfied  in  respect of such Securities.
(b) The Company  acknowledges  and  agrees that  so long  as Stephen  Hochberg
serves on the Board each of the Holders and their respective Affiliates that beneficially  owns (for
any purpose of Section  16 of the 1934  Act) any shares of Common  Stock (or any derivative
securities with respect thereto) shall be a “director by deputization”  for purposes of Section 16 of
the 1934 Act, including  Rule 16b-3  thereunder and related guidance  of the SEC, and the Company
agrees not  to take any contrary position.   The Company  further acknowledges and agrees that, to
the extent Section  16 is applicable  to the transactions  contemplated  hereby and/or  the conversion
of the Preferred Shares into  Common  Stock,  the Exchange and the direct and indirect  issuance (or
deemed issuance) to the Holders and their respective Affiliates  of the Preferred Shares and the
Conversion  Shares issuable  upon  the conversion  of the Preferred Stock have been approved  by  the
Company’s board of directors for purposes of Rule 16b-3  under the Exchange Act (the “Section
16 Approval”).  Prior to the Effective Time, the Company shall provide  to the Holders excerpts
of resolutions  of the Company’s board of directors embodying  the Section 16 Approval,  certified
by the secretary of the Company.
(c) Each Holder undertakes that, while a registration statement covering the
sale or resale of the Conversion  Shares is effective under the Securities  Act, such Holder  will only
sell or otherwise transfer such Conversion  Shares pursuant  to an effective registration  statement
or pursuant to Rule 144 under the Securities Act (if available),  and if any Conversion  Shares are
sold pursuant to a registration statement, they will be sold in compliance with the plan of
distribution  set forth  therein.    The Company  acknowledges and agrees that the foregoing
undertaking  by each Holder  constitutes an “Undertaking”  (within  the meaning  of such term in  the
Certificate of Designation)  of such Holder and that no additional  undertaking  by or on behalf of
such Holder shall be required to satisfy  clause (B) of the definition  of “Unrestricted  Conditio ns”
under the Certificate of Designation  unless this undertaking  is withdrawn in writing by such
Holder.
ARTICLE IV.
CONDITIONS.
Section 4.01. Conditions  to the Company’s and each Holder’s Obligations.  The
obligations of each Holder,  on the one hand, and the Company,  on the other hand,  to consummate
the Exchange and effect the Closing are subject to the satisfaction  at the Closing  of the following
condition: no temporary restraining  order, preliminary  or permanent injunction  or other judgement
or order issued by any Governmental  Entity  shall  have been issued,  and no Law shall  be in effect,
restraining,  enjoining,  making  illegal  or otherwise prohibiting  the consummation  of the
transactions contemplated  by this Agreement.
Section 4.02. Conditions to the Company’s  Obligations.   The obligation of the Company
to consummate the Exchange and effect the Closing  is subject to the satisfaction at or prior  to the
Closing of the following  conditions:
(a) Each Holder shall  have delivered  to the Company  at the Closing  the
deliverables  set forth in Section 1.02(a)(i); and 





	
	12


(b) The representations  and warranties of the Holder contained in Section 2.01
shall  be true and correct as of the date when made and as of the Closing  Date as though  made as
of such date (except for representations and warranties that speak as of a specific date, which shall
be true and correct in all material respects as of such date), except where the failure  of such
representations  and warranties to be so true and correct would  not,  individually  or in  the aggregate,
reasonably  be expected to materially  impair  or delay  the Holder’s ability  to perform  or comply
with its obligations  under this Agreement or to consummate the transactions contemplated hereby,
and the Holder shall have in all material respects performed, satisfied and complied  with the
covenants, agreements and conditions  required hereunder to be performed,  satisfied or complied
with by the Holder at or prior  to the Closing  Date.
Section 4.03. Conditions  to the Holder’s Obligations.   The obligation of the Holder to
consummate  the Exchange and effect the Closing  is subject to the satisfaction at or prior  to (or in
the case of Subsection  4.03(f), substantially  contemporaneously  with) the Closing of the following
conditions:
(a) The Company  shall  have delivered  to the Holder  at the Closing  the
deliverables  set forth in Section 1.02(a)(ii);
(b) The representations and warranties of the Company contained in Section
2.02 (disregarding all qualifications as to materiality set forth therein) shall  be true and correct in
all material respects as of the date when made and as of the Closing  Date as though  made as of
such date (except for representations and warranties that speak as of a specific date, which shall
be true and correct as of such date), and the Company shall have in all material respects performed,
satisfied and complied  with the covenants, agreements and conditions  required hereunder to be
performed,  satisfied  or complied  with by the Holder at or prior  to the Closing  Date;
(c) The Company shall have delivered to the Holder a copy of the Certificate
of Designation  that has been filed with the Secretary of State of the State of Delaware;
(d) The Holder (or their counsel) shall have received customary legal opinions
from  White  & Case LLP, as counsel  to the Company,  containing the opinions substantially in the
form set forth in Schedule C;
(e) Nasdaq shall have completed  its review of a “Listing  of Additional  Shares
Notification Form” for listing  of the Conversion  Shares on the Nasdaq Capital Market;
(f) The consummation  of the Mergers and the PIPE Transaction shall  be
occurring immediately  following  the Closing;   The Existing  RRA shall  have been amended and
restated as set forth in the A&R RRA.
ARTICLE V.
MISCELLANEOUS
Section 5.01. Entire Agreement.  This Agreement, together with the Certificate of
Designation,  constitute the entire agreement, and supersede all other prior and contemporaneous
agreements and understandings,  both oral and written (including  the Letter Agreement), among
the Holders and the Company  with respect to the subject matter hereof. 





	
	13


Section 5.02. Amendments and Waivers.  No provision  of this Agreement may be waived
or amended except in a written instrument  signed by the Company and the Holders.  No waiver of
any breach or default with respect to any provision,  condition  or requirement  of this Agreement
shall  be deemed to be a continuing  waiver in the future or a waiver of any subsequent breach or
default or a waiver of any other provision,  condition  or requirement hereof, nor shall any delay or
omission  of either party to exercise any right hereunder in any manner impair  the exercise of any
such right.
Section 5.03. Successors and  Assigns.  All  of the covenants and provisions  of this
Agreement by or for the benefit of the Holders or the Company  shall  bind  and inure  to the benefit
of their respective successors and permitted  assigns.  No party hereunder may assign its rights  or
obligations  hereunder without  the prior  written consent of the other parties hereto, except that any
Holder may assign its rights hereunder to any assignee or transferee of Preferred Shares or
Conversion  Shares after the Effective Time.
Section 5.04. Counterparts; Effectiveness.  This  Agreement and any amendment  hereto
may be executed and delivered  in any number of counterparts, 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.  In the event that any
signature  to this Agreement or any amendment  hereto is delivered  by facsimile  transmission  or by
e-mail  delivery  of a “.pdf” format data file,  such signature  shall create a valid  and binding
obligation  of the party executing  (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or “.pdf” signature page were an original  thereof.  No party
hereto shall raise the use of a facsimile  machine  or e-mail delivery  of a “.pdf” format data file to
deliver  a signature to this Agreement or any amendment hereto or the fact that such signature  was
transmitted  or communicated  through  the use of a facsimile  machine or e-mail delivery of a “.pdf”
format data file as a defense to the formation  or enforceability  of a contract, and each party hereto
forever waives any such defense.
Section 5.05. Effect of  Headings.  The section and subsection headings herein are for
convenience only and not part of this Agreement and shall not affect the interpretation  thereof.
Section 5.06. Further Assurances.  The parties hereby agree, from time to time, as and
when reasonably  requested by any other party hereto, to execute and deliver  or cause to be
executed and delivered,  all such documents,  instruments  and agreements, including  secretary’s
certificates, stock powers and irrevocable transfer agent instructions,  and to take or cause to be
taken such further or other action,  as may be reasonably necessary or desirable  in order to carry
out the intent and purposes of this Agreement (including  to effectuate the surrender of voting  rights
as contemplated  by Section 1.02(c)).
Section 5.07. No Strict  Construction.   The language  used in  this Agreement will  be
deemed to be the language chosen by the parties to express their mutual  intent,  and no rule of strict
construction will be applied against any party.
Section 5.08. Termination.  Except to the extent otherwise agreed in writing  by each
Holder  prior  to the Closing,  this Agreement shall terminate and be of no further force or effect  if
the Merger Agreement is terminated prior  to the “Closing”  (as defined  in the Merger Agreement). 





	
	14


Section 5.09. Governing Law. This Agreement will  be governed by and construed in
accordance with  the Laws of the State of Delaware. The parties hereby irrevocably  and
unconditionally  consent to submit  to the exclusive  jurisdiction  of the state and federal courts
located in the State of Delaware for any actions, suits or proceedings  arising  out of or relating  to
this Agreement and the transactions  contemplated  hereby. The parties hereby irrevocably  and
unconditionally  consent to the jurisdiction  of such courts (and of the appropriate appellate courts
therefrom) in  any such action,  suit  or proceeding  and irrevocably  waive,  to the fullest extent
permitted by Law, any objection  that they may now or hereafter have to the laying  of the venue of
any such action,  suit or proceeding  in any such court or that any such action,  suit or proceeding
which is brought  in any such court has been brought in an inconvenient  forum. Process in any such
action,  suit or proceeding  may be served on any party anywhere in the world,  whether within  or
without  the jurisdiction  of any such court. Without  limiting  the foregoing,  each party agrees that
service of process on  such party as provided  in Section 5.11 shall be deemed effective service of
process on such party.
Section 5.10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT  OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 5.11. Notices. Any notice, request, instruction  or other document  to be given
hereunder by any party to the other will  be in writing  and will  be deemed to have been duly  given
(a) on  the date of delivery  if delivered personally or by electronic mail (so long  as such
transmission  does not generate an error message or notice of non-delivery),  (b) on the first business
day following  the date of dispatch  if delivered  by a recognized  next-day courier service, or (c) on
the third  business day following  the date of mailing  if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth
below, or pursuant to such other instructions  as may be designated in writing  by the party to receive
such notice.
If to the Holder:
c/o Deerfield Management Company L.P.
345 Park Avenue South, 12th Floor
New York, NY 10010
Attn:  Legal Department
Email: legalnotice@deerfield.com

with a copy to:

Katten Muchin  Rosenman LLP
525 W. Monroe Street
Chicago, Illinois  60661
Attn: Mark D. Wood,  Esq.
Email: mark.wood@katten.com
 





	
	15


If to the Company (prior  to the Closing):
DFP Healthcare Acquisitions  Corp.
345 Park Avenue South
New York,  New York  10010
Attention: Christopher Wolfe
E-mail: chris.wolfe@dfphealthcare.com

with a copy to:

White  & Case LLP
609 Main Street, Suite 2900
Houston, TX 77002
Attention: Jason A. Rocha
E-mail:   Jason.rocha@whitecase.com

If to the Company (after the Closing):
The Oncology  Institute Inc.
18000 Studebraker Rd. Suite 800
Cerritos,  CA 90703
Attention: Brad Hively
E-mail:  bradhively@theoncologyinstitute.com

with copies (which shall not constitute notice) to:

Latham  & Watkins  LLP
355 South Grand Avenue, Suite 100
Los Angeles,  CA 90071
Attention:  Steven Stokdyk
 Brian Duff
E- mail:  Steven.Stokdyk@lw.com
 Brian.Duff@lw.com

Section 5.12. Interpretation;  Other Definitions.  Wherever required  by  the context  of this
Agreement, the singular  shall include  the plural  and vice versa, and the masculine  gender shall
include  the feminine  and neuter genders and vice versa, and references to any agreement, document
or instrument  shall  be deemed to refer to such agreement, document  or instrument  as amended,
supplemented  or modified  from time to time. All article, section, paragraph or clause references
not attributed  to a particular  document  shall  be references to such parts of this Agreement,  and all
exhibit,  annex, letter and schedule references not attributed  to a particular document shall be
references to such exhibits,  annexes, letters and schedules to this Agreement. In addition,  the
following  terms are ascribed the following  meanings:
(a) the word “or” is not exclusive; 





	
	16


(b) the words “including,” “includes,” “included” and “include” are deemed
to be followed  by the words “without  limitation”;
(c) the terms “herein,” “hereof ” and  “hereunder” and other words of similar
import  refer to this Agreement as a whole and not to any particular  section, paragraph or
subdivision;
(d) “beneficial owner,” “beneficially own” or “beneficial ownership” has  the
meaning assigned to such term in Rule 13d-3  under the Exchange Act, and a person or entity’s
beneficial  ownership  of securities shall be calculated in accordance with the provisions  of such
Rule (in  each case, irrespective of whether or not such Rule is actually  applicable  in such
circumstance);
(e) the term “business day” means any day except Saturday, Sunday and any
day which shall be a legal holiday  or a day on which banking  institutions  in New York,  New York
generally are authorized or required by Law or other governmental  action to close; provided,
however, for clarification,  commercial  banks shall not be deemed to be authorized  or required by
law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential  employee”   or any
other similar  orders or restrictions or the closure of any physical  branch locations  at the direction
of any governmental  authority  so long  as the electronic  funds transfer systems (including  for wire
transfers) of commercial  banks in New York,  New York generally  are open for use by customers
on such day; and
(f) the term “pe rson” has the meaning given to it in Section 3(a)(9) of the
Exchange Act and as used in  Sections 13(d)(3)  and 14(d)(2)  of the Exchange Act.
(g) “Affiliate” means, with respect to any specified person, any other person
that, at the time  of determination,  directly  or indirectly  through  one or more intermediaries,
controls,  is controlled  by or is under common  control  with such specified person.  Without  limiting
the foregoing,  with respect to the Holder, any investment  fund or managed account that is managed
on a discretionary  basis by the same investment  manager as such Holder shall be deemed an
Affiliate  of such Holder.
(h) “Company  Material  Adverse Effect” means any change, effect, event,
occurrence, condition,  state of facts or development  that, either alone or in combination,  has had,
or would  be reasonably  expected to have, (a) a materially  adverse effect on the business,
operations,  assets, liabilit ies  or condition  (financial  or otherwise) or results of operations of the
Company,  taken as a whole or (b) a material impairment  on or material  delay in the ability  of the
Company to perform its material obligations  under this Agreement or any Ancillary  Document or
to consummate the transactions contemplated  by this Agreement and/or the Ancillary  Documents.
(i) “Governmental Entity” means any court,  administrative  or regulatory
agency or commission  or other governmental  or arbitral body or authority  or instrumentality,
including  the SEC and any state-controlled  or owned corporation  or enterprise, in each case
whether federal,  state, local  or foreign,  and any applicable  industry  self-regulatory organization
(including Nasdaq). 





	
	17


(j) “Knowledge of the Company” means the actual knowledge after
reasonable inquiry  of one or more of Brad Hively  or Scott Dalgleish.
(k) “Law” means any federal, state, local or foreign law, statute or ordinance,
or any rule,  code, treaty, constitution,  regulation,  judgment,  order, writ,  injunction,  ruling, decree,
administrative  interpretation  or agency requirement  of any Governmental  Entity.
(l) “Permitted Liens” means (i) Liens arising under this Agreement, the IRA
or any other agreement to which  the Company  is a party, (ii)  Liens imposed  by the Company  and
(iii)  restrictions  on transfer arising  under applicable  securities laws.
Section 5.13. Captions.  The article,  section, paragraph and clause captions  herein are for
convenience  of reference only,  do not constitute  part of this Agreement and will  not be deemed to
limit or otherwise affect any of the provisions  hereof.
Section 5.14. Severability.  If any provision  of this  Agreement or the application  thereof
to any person (including  the officers and directors  of the parties hereto) or circumstance is
determined  by a court of competent jurisdiction  to be invalid,  void  or unenforceable,  the remaining
provisions  hereof, or the application  of such provision  to persons or circumstances other than those
as to which it has been held invalid  or unenforceable, will  remain in full force and effect and shall
in no way be affected, impaired  or invalidated  thereby, 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,  the parties shall negotiate in  good faith in  an effort to agree upon
a suitable  and equitable  substitute  provision  to effect the original  intent  of the parties.
Section 5.15. No Third  Party Beneficiaries. Nothing  contained in this Agreement,
expressed or implied,  is intended  to confer upon any person or entity other than the parties hereto
(and their permitted assigns), any benefit, right or remedies.
Section 5.16. Specific Performance. The parties agree that irreparable damage would
occur in  the event that any of the provisions  of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly  agreed that, without  the
necessity of posting  bond or other undertaking or proving economic damages, the parties shall be
entitled to specific performance of the terms hereof, this being  in addition  to any other remedies
to which  they are entitled  at law or equity,  and in  the event that any action  or suit is brought  in
equity  to enforce the provisions  of this Agreement, and no party will  allege,  and each party hereby
waives, the defense or counterclaim  that there is an adequate remedy at law.

[The remainder of this page is intentionally  left blank—signature pages follow]





 


 


DocuSign Envelope ID: 43B3EAC1-7E5C-4CA2-8A6E-61C9D4FEC640


 


 


IN WITNESS WHEREOF, each party hereto has
caused this Agreement to be duly executed as of the date first written above.


 


 


	 	THE COMPANY:
	 	 	 
	 	DFP HEALTHCARE ACQUISITIONS CORP.
	 	 	 
	 	By:	/s/ Chris Wolfe
	 	Name:	Chris Wolfe
	 	Title: 	Chief  Financial Officer



 


 


 


[Signature page to Exchange Agreement]






 


	 	The Holders
	 	 	 	 
	 	Deerfield Partners, L.P.
	 	 	 	 
	 	By:	Deerfield Mgmt, L.P., General Partner
	 	 	By:	J.E. Flynn Capital, LLC, General Partner
	 	 	 	 
	 	By:	/s/ David Clark
	 	Name:	David J. Clark
	 	Title:	Authorized Signatory
	 	 	 	 
	 	Deerfield Private Design Fund IV, L.P.
	 	 	 	 
	 	By:	Deerfield Mgmt IV, L.P., General Partner
	 	 	By:	J.E. Flynn Capital IV, LLC, General Partner
	 	 	 	 
	 	By:	/s/ David Clark
	 	Name:	David J. Clark
	 	Title:	Authorized Signatory
	 	 	 	 
	 	DFP Sponsor LLC
	 	 	 	 
	 	By:	/s/ Lawrence Atinsky
	 	Name:	Lawrencve Atinsky
	 	Title:	Authorized Signatory



 


[Signaturte page to Exchange Agreement]  




 




	
	
Schedule A
Owned Common  Shares and  Warrants

Holder Equity Type Record Holder Number of
Shares Held
Public
Warrants
Private
Warrants
Deerfield Private
Design Fund  IV, L.P.
Class A
Common
Stock
The Depository
Trust Company
or its nominee
2,500,000 625,000 --
Deerfield Partners,
L.P.
Class A
Common
Stock
The Depository
Trust Company
or its nominee
2,500,000 625,000 --
DFP Sponsor  LLC Class B
Common
Stock
DFP Sponsor
LLC
5,360,000 -- 3,733,334


  





	
	


Schedule B
Exchanged Common  Shares

Holder Exchanged
Common
Shares
Preferred Shares
Deerfield Private Design Fund IV, L.P. 894,523 8,945.23
Deerfield Partners, L.P. 894,523 8,945.23
DFP Sponsor  LLC 5,360,000 53,600

  





	
	
Schedule C

1. The Company  is in good  standing  under the laws of the State of Delaware and has all
requisite  corporate power to conduct its business and to perform its obligations  under the Exchange
Agreement.
2. The execution  and delivery  by the Company  of the Exchange Agreement does not,  and the
consummation  by the Company  of the transactions  contemplated  by the Exchange Agreement will  not,
result in its violation  of any provision  of (i) the Delaware General  Corporation  Law (the “DGCL”), or any
United States federal statute, rule or regulation,  which in our experience is normally  applicable  with
respect to transactions of the type contemplated  by the Exchange Agreement (without taking into account
the particular  nature of the business conducted by the parties to the Exchange Agreement), except that we
express no opinion  in this paragraph with respect to U.S. federal or state securities or blue sky laws, or (ii)
any provision  of the Charter and Bylaws of the Company.
3. Each of the Exchange Agreement and the Certificate of Designation  has been duly
authorized,  and the Exchange Agreement has been executed and delivered  by the Company.
4. No consent, approval, license, authorization or order of, or filing  with,  any United States
federal or Delaware court or other United  States federal or Delaware governmental  agency or body which
in our experience is normally  applicable  with respect to transactions of the type contemplated by the
Exchange Agreement (without  taking into account the particular  nature of the business conducted by the
parties to the Exchange Agreement) is required to be obtained  or made by the Company  to authorize,  or
is required in connection  with,  the consummation  of the transactions contemplated  by the Exchange
Agreement, except (a) as may be required under the state securities or “Blue  Sky” laws of any jurisdiction
in the United States (as to which we express no comment or opinion),  and (b) as have been obtained  or
made on or prior  to the date hereof.
5. The Preferred Shares have been duly  authorized  and,  when issued  in  compliance  with  the
provisions  of the Exchange  Agreement, will  be validly  issued,  fully  paid  and non-assessable. The
Common Shares issuable upon conversion of the Preferred Shares (the “Conversion Shares”), have been
duly  authorized  and, when and if issued upon  such conversion  in accordance with the Certificate of
Designation, will be validly  issued, fully paid and non-assessable. The issuance of the Preferred Shares
and the Conversion  Shares are not subject  to any preemptive  rights  set forth in  the DGCL or the Charter
and Bylaws of the Company,  except for such preemptive  rights  as have been complied  with or waived.
6. No registration  of the Preferred Shares under the Securities Act of 1933,  as amended  (the
 “Securities  Act”), is required  for the issuance of any of the Preferred Shares in  the manner contemplated
by the Exchange Agreement or for the conversion  of the Preferred Shares into the Conversion  Shares in
accordance with the Certificate of Designation  (assuming  such issuance is effected on the date hereof), in
each case, by virtue  of the exemption  from registration  provided  by Section  3(a)(9) of the Securities  Act.
We express no opinion,  however, as to when or under what circumstances any of the Preferred Shares or
the Conversion  Shares may be reoffered or resold.
  





	
	
Schedule 2.02(d)

(1) 23,000,000 shares of Class A common stock, par value $0.0001 (“Class A Stock”), issued and outstanding.
5,750,000 shares of Class B common stock, par value $0.0001 issued and outstanding.
0 shares of preferred stock issued and outstanding.
(ii)  9,483,334 warrants issued and outstanding convertible for 9,483,334 shares of Class A Stock.
(iii) None.


  





	
	
Exhibit A
Certificate of Designation 





	
	

Exhibit B
Amended and Restated Bylaws