exhibit105






Execution Version US-DOCS\131770162.7 STANDBY EQUITY PURCHASE AGREEMENT THIS STANDBY EQUITY PURCHASE AGREEMENT (this “Agreement”) dated as  of May 12, 2022, is made by and between YA II PN, LTD., a Cayman Islands exempt limited  partnership (the “Investor”), and BIRD GLOBAL, INC., a company incorporated under the laws  of the State of Delaware (the “Company”). WHEREAS, the parties desire that, upon the terms and subject to the conditions contained  herein, the Company shall have the right to issue and sell to the Investor, from time to time as  provided herein, and the Investor shall purchase from the Company, up to $100,000,000 of the  Company’s shares of Class A common stock, par value $0.0001 per share (the “Class A Common  Stock”);  WHEREAS, the Class A Common Stock is listed for trading on The New York Stock  Exchange under the symbol “BRDS”; and WHEREAS, the offer and sale of the shares of Class A Common Stock issuable hereunder  will be made in reliance upon Section 4(a)(2) under the U.S. Securities Act of 1933, as amended,  and the rules and regulations promulgated thereunder (the “Securities Act”), or upon such other  exemption from the registration requirements of the Securities Act as may be available with respect  to any or all of the transactions to be made hereunder. NOW, THEREFORE, the parties hereto agree as follows: Article I. Certain Definitions “Additional Shares” shall have the meaning set forth in Section 2.01(d)(ii). “Adjusted Advance Amount” shall have the meaning set forth in Section 2.01(d)(i). “Advance” shall mean any issuance and sale of Advance Shares from the Company to the  Investor pursuant to Article II hereof. “Advance Amount” shall mean an Option 1 Advance Amount or Option 2 Advance  Amount, as applicable. “Advance Date” shall mean the First Trading Day after expiration of the applicable Pricing  Period for each Advance. “Advance Notice” shall mean a written notice in substantially the form of Exhibit A  attached hereto to the Investor executed by an officer or other authorized representative of the  Company. “Advance Notice Date” shall mean each date the Company is deemed to have delivered (in  accordance with Section 2.01(b) of this Agreement) an Advance Notice to the Investor, subject to  the terms of this Agreement.  “Advance Shares” shall mean the shares of Class A Common Stock that the Company shall  





 






- 2 - US-DOCS\131770162.7 issue and sell to the Investor pursuant to an Advance.  “Affiliate” shall have the meaning set forth in Section 3.08.  “Agreement” shall have the meaning set forth in the preamble of this Agreement. “Applicable Laws” shall mean all applicable laws, statutes, rules, regulations, orders,  executive orders, directives, policies, guidelines and codes having the force of law, whether local,  national or international, as amended from time to time, including, without limitation, (i) all  applicable laws that relate to money laundering, terrorist financing, financial record keeping and  reporting, (ii) all applicable laws that relate to anti-bribery, anti-corruption, books and records and  internal controls, including the U.S. Foreign Corrupt Practices Act of 1977, and (iii) any Sanctions  laws. “Basket” shall have the meaning set forth in Section 5.04. “Black Out Period” shall have the meaning set forth in Section 6.01(f) “Broker-Dealer” shall have the meaning set forth in Section 3.12. “Class A Common Stock” shall have the meaning set forth in the recitals of this Agreement. “Class B Common Stock” shall have meaning set forth in Section 4.10. “Class X Common Stock” shall have meaning set forth in Section 4.10. “Closing” shall have meaning set forth in Section 2.02. “Commitment Amount” shall mean $100,000,000 of Advance Shares; provided that the  Company shall not affect any sales under this Agreement, and the Investor shall not have the  obligation to purchase Advance Shares under this Agreement, to the extent (but only to the extent)  that, after giving effect to such purchase and sale, the aggregate number of Shares issued under  this Agreement would exceed 19.99% of the shares of Class A Common Stock and Class X  Common Stock outstanding as of the date of this Agreement (the “Exchange Cap”); provided  further that the Exchange Cap will not apply (a) if the Company’s stockholders have approved  issuances in excess of the Exchange Cap in accordance with the rules of the Principal Market, (b)  all applicable sales of Shares hereunder equal or exceed the Minimum Price (as defined in Section  312.03 of the NYSE Listed Company Manual) or (c) as to any Advance, the issuance of Advance  Shares in respect of such Advance would be excluded from the Exchange Cap under the rules of  the Principal Market (or interpretive guidance provided by the Principal Market with respect  thereto) in effect as of the date of determination of whether this clause (c) applies. For avoidance  of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve  the issuance of Shares as contemplated by this Agreement; provided that, if stockholder approval  is not obtained in accordance with this Agreement, the Exchange Cap shall be applicable for all  purposes of this Agreement and the transactions contemplated hereby at all times during the term  of this Agreement. “Commitment Period” shall mean the period commencing on the date hereof and expiring  





 






- 3 - US-DOCS\131770162.7 upon the date of termination of this Agreement in accordance with Section 11.02. “Commitment Shares” shall have the meaning set forth in Section 13.04. “Company” shall have the meaning set forth in the preamble of this Agreement. “Company Indemnitees” shall have the meaning set forth in Section 5.02. “Condition Satisfaction Date” shall have the meaning set forth in Section 7.01. “Daily Traded Amount” shall mean the daily trading volume of the Class A Common Stock  on the Principal Market during regular trading hours as reported by Bloomberg L.P.  “DTC” shall have the meaning set forth in Section 2.02(b). “DWAC” shall have the meaning set forth in Section 2.02(b). “Environmental Laws” shall have the meaning set forth in Section 4.15. “Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and  the rules and regulations promulgated thereunder. “Exchange Cap” shall have the meaning set forth in the definition of “Commitment  Amount.”  “Excluded Day” shall have the meaning set forth in Section 2.01(d)(i).  “GAAP” shall have the meaning set forth in Section 4.06. “Hazardous Materials” shall have the meaning set forth in Section 4.15. “Indemnified Liabilities” shall have the meaning set forth in Section 5.01. “Investor” shall have the meaning set forth in the preamble of this Agreement. “Investor Indemnitees” shall have the meaning set forth in Section 5.01. “Market Price” shall mean an Option 1 Market Price or Option 2 Market Price, as  applicable.  “Material Adverse Effect” shall mean, with respect to any event, occurrence or condition,  (i) a material adverse effect on the legality, validity or enforceability of this Agreement or the  transactions contemplated herein, (ii) a material adverse effect on the results of operations, assets,  business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a  whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect  on a timely basis its obligations under this Agreement. “Material Outside Event” shall have the meaning set forth in Section 6.08. 





 






- 4 - US-DOCS\131770162.7 “Maximum Advance Amount” shall mean a number of shares of Class A Common Stock  with a value equal to $20,000,000, unless otherwise agreed by the parties. “Minimum Acceptable Price” shall mean the minimum price notified by the Company to  the Investor in each Advance Notice, if applicable. “OFAC” shall have the meaning set forth in Section 4.29. “Option 1 Advance Amount” shall mean, in respect of each Advance Notice containing an  Option 1 Pricing Period, an amount up to 150.0% of the average Daily Traded Amount for the  three Trading Days immediately preceding an Advance Notice, except as otherwise may be agreed  by the Company and the Investor, but in no event greater than the Maximum Advance Amount. “Option 2 Advance Amount” shall mean, in respect of each Advance Notice containing an  Option 2 Pricing Period, an amount up to 50.0% of the average Daily Traded Amount for the three  Trading Days immediately preceding an Advance Notice, except as otherwise may be agreed by  the Company and the Investor, but in no event greater than Maximum Advance Amount. “Option 1 Market Price” shall mean the average of the daily VWAPs of the Class A  Common Stock during the Option 1 Pricing Period. “Option 2 Market Price” shall mean the VWAP of the Class A Common Stock during the  Option 2 Pricing Period.  “Option 1 Pricing Period” shall mean the three consecutive Trading Days commencing on  the Advance Notice Date. “Option 2 Pricing Period” shall mean the period on the applicable Advance Notice Date  with respect to an Advance Notice selecting an Option 2 Pricing Period commencing upon receipt  by the Company of written confirmation (which may be by email) of acceptance of such Advance  Notice by the Investor, and which confirmation shall specify such commencement time, and  ending on 4:00 p.m. New York City time on the applicable Advance Notice Date. “Ownership Limitation” shall have the meaning set forth in Section 2.01(c)(i). “Person” shall mean an individual, a corporation, a partnership, a limited liability company,  a trust or other entity or organization, including a government or political subdivision or an agency  or instrumentality thereof. “Plan of Distribution” shall mean the section of a Registration Statement disclosing the  plan of distribution of the Shares. “Pre-Advance Date” shall have the meaning set forth in Error! Reference source not  found.. “Pre-Advance Loan” shall have the meaning set forth in Error! Reference source not  found.. 





 






- 5 - US-DOCS\131770162.7 “Preferred Stock” shall have the meaning set forth in Section 4.10. “Pricing Period” shall mean the Option 1 Pricing Period or Option 2 Pricing Period, as  applicable.  “Principal Market” shall mean The New York Stock Exchange; provided, however, that in  the event the Class A Common Stock is ever listed or traded on the NYSE American, the Nasdaq  Global Market, the Nasdaq Global Select Market, the Nasdaq Capital Market the OTCBB or the  NYSE Euronext, then the “Principal Market” shall mean such other market or exchange on which  the Class A Common Stock is then listed or traded to the extent such other market or exchange is  the principal trading exchange or market for the Class A Common Stock. “Promissory Note” shall have the meaning set forth in Section 2.05.  “Prospectus” shall mean any prospectus (including, without limitation, all amendments and  supplements thereto) used by the Company in connection with a Registration Statement. “Prospectus Supplement” shall mean any prospectus supplement to a Prospectus filed with  the SEC pursuant to Rule 424(b) under the Securities Act, including, without limitation, any  prospectus supplement to be filed in accordance with 0 hereof. “Purchase Price” shall mean the price per Advance Share obtained by multiplying the  applicable Market Price by 97.0%. “Registrable Securities” shall mean (i) the Shares and (ii) any securities issued or issuable  with respect to any of the foregoing by way of exchange, stock dividend or stock split or in  connection with a combination of shares, recapitalization, merger, consolidation or other  reorganization or otherwise. “Registration Limitation” shall have the meaning set forth in Section 2.01(c)(ii). “Registration Statement” shall mean a registration statement on Form S-1 or on such other  form promulgated by the SEC for which the Company then qualifies and which counsel for the  Company shall deem appropriate, and which form shall be available for the registration of the  resale by the Investor of the Registrable Securities under the Securities Act, which registration  statement provides for the resale from time to time of the Shares as provided herein. “Regulation D” shall mean the provisions of Regulation D promulgated under the  Securities Act. “Request” shall have the meaning set forth in Section 2.05(a).  “Restricted Period” shall have the meaning set forth in Section 6.17. “Restricted Person” shall have the meaning set forth in Section 6.17. “Sanctions” shall have the meaning set forth in Section 4.30. 





 






- 6 - US-DOCS\131770162.7 “Sanctioned Countries” shall have the meaning set forth in Section 4.30. “SEC” shall mean the U.S. Securities and Exchange Commission. “SEC Documents” shall have the meaning set forth in Section 4.06. “Securities Act” shall have the meaning set forth in the recitals of this Agreement. “Settlement Document” shall have the meaning set forth in Section 2.02(a). “Shares” shall mean the Commitment Shares and any Advance Shares issued from time to  time hereunder. “Subsidiary” shall mean any Person in which the Company, directly or indirectly, (x) owns  a majority of the outstanding capital stock or holds a majority of the equity or similar interest of  such Person or (y) controls or operates all or substantially all of the business, operations or  administration of such Person, and the foregoing are collectively referred to herein as  “Subsidiaries.” “Trading Day” shall mean any day during which the Principal Market shall be open for  business. “Transaction Documents” shall have the meaning set forth in Section 4.02. “Transaction Documents” shall mean, collectively, this Agreement and the Promissory  Note. “VWAP” shall mean, for any Trading Day, the daily volume weighted average price of the  Class A Common Stock for such Trading Day on the Principal Market during regular trading hours,  or other period as set forth herein, as reported by Bloomberg L.P.  Article II. Advances Section 2.01 Advances; Mechanics. Upon the terms, and subject to the conditions, of this  Agreement, during the Commitment Period, the Company, at its sole and exclusive discretion,  shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor shall  purchase from the Company, Advance Shares by the delivery to the Investor of Advance Notices  on the following terms:  (a) Advance Notice. At any time during the Commitment Period the Company  may require the Investor to purchase Shares by delivering an Advance Notice to the  Investor, subject to the satisfaction or waiver by the Investor of the conditions set forth in  Section 7.01, and in accordance with the following provisions:  (i) The Company shall, in its sole discretion, select the Advance  Amount, not to exceed the Maximum Advance Amount, it desires to issue and  sell to the Investor in each Advance Notice and the time it desires to deliver each  Advance Notice. 





 






- 7 - US-DOCS\131770162.7 (ii) There shall be no mandatory minimum Advances and no non-usages  fee for not utilizing the Commitment Amount or any part thereof.  (b) Date of Delivery of Advance Notice. Advance Notices shall be delivered in  accordance with the instructions set forth on the bottom of Exhibit A attached hereto. An  Advance Notice setting forth an Option 2 Advance Amount shall be deemed delivered on  (i) the day it is received by the Investor if such notice is received by e-mail at or before  11:30 a.m. Eastern Time (or such later time if agreed to by the Investor in its sole  discretion) in accordance with the instructions set forth on the bottom of Exhibit A attached  hereto or (ii) the immediately succeeding day if it is received by e-mail after 11:30 a.m.  Eastern Time. An Advance Notice setting forth an Option 1 Advance Amount shall be  deemed delivered on (i) the day it is received by the Investor if such notice is received by  e-mail at or before 8:30 a.m. Eastern Time (or such later time if agreed to by the Investor  in its sole discretion) in accordance with the instructions set forth on the bottom of Exhibit  A attached hereto, or (ii) the immediately succeeding day if it is received by e-mail after  8:30 a.m. Eastern Time. Upon receipt of an Advance Notice, the Investor shall promptly  (and, in respect to an Advance Notice selecting an Option 2 Advance Amount received  during regular trading hours, in no event more than one half hour after receipt) provide  written confirmation (which may be by e-mail) of receipt of such Advance Notice, and  which confirmation shall specify the commencement time of the Option 2 Pricing Period. (c) Advance Limitations. Regardless of the Advance Amount requested by the  Company in the Advance Notice, the final number of Advance Shares to be issued and sold  pursuant to an Advance Notice shall be reduced in accordance with each of the following  limitations to the extent applicable: (i) Ownership Limitation; Commitment Amount. At the request of the  Company, the Investor will inform the Company of the amount of shares of Class  A Common Stock the Investor and each of its Affiliates currently beneficially  owns. In no event shall the number of Advance Shares issuable to the Investor  pursuant to an Advance cause the aggregate number of shares of Class A  Common Stock beneficially owned (as calculated pursuant to Section 13(d) of  the Exchange Act) by the Investor and its Affiliates (on an aggregated basis and  as a result of previous issuances and sales of Shares to the Investor under this  Agreement) to exceed 4.99% of the then-outstanding shares of Class A Common  Stock (the “Ownership Limitation”). The Investor agrees to use commercially  reasonable efforts to sell all Shares issued to it pursuant to any Advance hereunder  within 15 Trading Days following the date on which the Advance Closing to  which such Advance relates occurs. In connection with each Advance Notice  delivered by the Company, any portion of an Advance that would (i) cause the  Investor to exceed the Ownership Limitation or (ii) cause the aggregate number  of Shares issued and sold to the Investor hereunder to exceed the Commitment  Amount shall automatically be withdrawn with no further action required by the  Company, and such Advance Notice shall be deemed automatically modified to  reduce the Advance Amount requested by an amount equal to such withdrawn  portion; provided that, in the event of any such automatic withdrawal and  automatic modification, the Investor will promptly notify the Company of such  





 






- 8 - US-DOCS\131770162.7 event. (ii) Registration Limitation and Exchange Cap. In no event shall an  Advance exceed the amount registered under the Registration Statement then in  effect (the “Registration Limitation”) or the Exchange Cap, to the extent  applicable. In connection with each Advance Notice, any portion of an Advance  that would exceed the Registration Limitation or the Exchange Cap shall  automatically be withdrawn with no further action required by the Company and  such Advance Notice shall be deemed automatically modified to reduce the  aggregate amount of the requested Advance by an amount equal to such  withdrawn portion in respect of such Advance Notice; provided that in the event  of any such automatic withdrawal and automatic modification, the Investor will  promptly notify the Company of such event. (d) Minimum Acceptable Price.  (i) With respect to each Advance Notice selecting an Option 1 Pricing  Period, provided that no Promissory Note is then outstanding, the Company may  notify the Investor of the Minimum Acceptable Price with respect to such  Advance by indicating a Minimum Acceptable Price in such Advance Notice. If  no Minimum Acceptable Price is specified in an Advance Notice, then no  Minimum Acceptable Price shall be in effect in connection with such Advance.  Each Trading Day during a Pricing Period for which (A) with respect to each  Advance Notice with a Minimum Acceptable Price, the VWAP of the Class A  Common Stock is below the Minimum Acceptable Price in effect with respect to  such Advance Notice, or (B) there is no VWAP (each such day, an “Excluded  Day”), shall result in an automatic reduction to the Advance Amount set forth in  such Advance Notice by 33.3% (the resulting amount of each Advance being the  “Adjusted Advance Amount”), and each Excluded Day shall be excluded from  the Pricing Period for purposes of determining the applicable Market Price. (ii) The total Advance Shares in respect of each Advance (after  reductions have been made to arrive at the Adjusted Advance Amount) shall be  automatically increased by such number of shares of Class A Common Stock (the  “Additional Shares”) equal to the number of Advance Shares sold by the Investor  on such Excluded Day, if any, and the price paid per share for each Additional  Share shall be equal to the Minimum Acceptable Price in effect with respect to  such Advance Notice (without any further discount); provided that this increase  shall not cause the total Advance Amount to exceed the amount set forth in the  original Advance Notice or any limitations set forth in Section 2.01(c). (e) Unconditional Contract. Notwithstanding any other provision in this  Agreement, the Company and the Investor acknowledge and agree that, upon the Investor’s  receipt of a valid Advance Notice, the parties shall be deemed to have entered into an  unconditional contract binding on both parties for the purchase and sale of Advance Shares  pursuant to such Advance Notice in accordance with the terms of this Agreement and, (i)  subject to Applicable Laws and (ii) subject to Section 3.04, the Investor may sell Shares  





 






- 9 - US-DOCS\131770162.7 during the Pricing Period. Section 2.02 Closings. The closing of each Advance and each sale and purchase of  Advance Shares (each, a “Closing”) shall take place as soon as practicable on or after each  Advance Date in accordance with the procedures set forth below. The parties acknowledge that  the Purchase Price is not known at the time the Advance Notice is delivered (at which time the  Investor is irrevocably bound) but shall be determined on each Closing based on the daily prices  of the Class A Common Stock that are the inputs to the determination of the Purchase Price as set  forth further below. In connection with each Closing, the Company and the Investor shall fulfill  each of its obligations as set forth below:  (a) On each Advance Date, the Investor shall deliver to the Company a written  document, in the form attached hereto as Exhibit B (each a “Settlement Document”),  setting forth the final number of Advance Shares to be purchased by the Investor (taking  into account any adjustments pursuant to Section 2.01), the applicable Market Price, the  Purchase Price, the aggregate proceeds to be paid by the Investor to the Company and a  report by Bloomberg, L.P. indicating the VWAP for each of the Trading Days during the  applicable Pricing Period, in each case, in accordance with the terms and conditions of this  Agreement. (b) Promptly after receipt of the Settlement Document with respect to each  Advance (and, in any event, not later than one Trading Day after such receipt), the Investor  shall pay to the Company the aggregate purchase price of the Advance Shares (as set forth  in the Settlement Document) in cash in immediately available funds to an account  designated by the Company in writing and transmit notification to the Company that such  funds transfer has been requested. Promptly upon receipt of the funds, the Company will,  or will cause its transfer agent to, electronically transfer such number of Advance Shares  purchased by the Investor (as set forth in the Settlement Document) by crediting the  Investor’s account or its designee’s account at the Depository Trust Company (“DTC”)  through its Deposit Withdrawal at Custodian System (“DWAC”) or by such other means  of delivery as may be mutually agreed upon by the parties hereto, and transmit notification  to the Investor that such share transfer has been requested. No fractional shares shall be  issued, and any fractional amounts shall be rounded to the next higher whole number of  shares. Subject to Section 2.02(c), to facilitate the transfer of the Shares by the Investor,  the Shares will not bear any restrictive legends so long as there is an effective Registration  Statement covering the resale of such Shares (it being understood and agreed by the  Investor that notwithstanding the lack of restrictive legends, the Investor may only sell such  Shares pursuant to the Plan of Distribution set forth in the Prospectus included in the  Registration Statement and otherwise in compliance with the requirements of the Securities  Act (including any applicable prospectus delivery requirements)). (c) Notwithstanding Section 2.02(b), the certificate(s) or book-entry  statement(s) representing the Commitment Shares issued prior to the date the Registration  Statement is declared effective by the SEC shall bear a restrictive legend in substantially  the following form (and stop transfer instructions may be placed against transfer of the  Commitment Shares): 





 






- 10 - US-DOCS\131770162.7 THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN  REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED  (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS.  THE SECURITIES REPRESENTED HEREBY HAVE BEEN SOLD IN  RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE  SECURITIES ACT AND SUCH STATE SECURITIES LAWS AND,  ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT  TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE  SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION  FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION  REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH  APPLICABLE STATE SECURITIES LAWS. (d) On or prior to the Advance Date, each of the Company and the Investor  shall deliver to the other all documents, instruments and writings expressly required to be  delivered by either of them pursuant to this Agreement in order to implement and effect  the transactions contemplated herein.  (e) Notwithstanding anything to the contrary in this Agreement, if on any day  during the applicable Pricing Period (i) the Company notifies the Investor that a Material  Outside Event has occurred or (ii) the Company notifies the Investor of a Black Out Period,  the parties agree that the pending Advance shall end and the final number of Advance  Shares to be purchased by the Investor at the Closing for such Advance shall be equal to  the number of Advance Shares sold by the Investor during the applicable Pricing Period  prior to the notification from the Company of a Material Outside Event or Black Out  Period. Section 2.03 Hardship.  (a) In the event the Investor sells Advance Shares after receipt of an Advance  Notice and the Company fails to perform its obligations as mandated in Section 2.02, the  Company agrees that, in addition to and in no way limiting the rights and obligations set  forth in Article V hereto and in addition to any other remedy to which the Investor is  entitled at law or in equity, including, without limitation, specific performance, it will hold  the Investor harmless against any loss, claim, damage or expense (including reasonable  and documented out-of-pocket legal fees and expenses), as incurred, arising out of or in  connection with such default by the Company and acknowledges that irreparable damage  may occur in the event of any such default. It is accordingly agreed that the Investor shall  be entitled to an injunction or injunctions to prevent such breaches of this Agreement and  to specifically enforce (subject to Applicable Laws and other rules of the SEC and the  Principal Market), without the posting of a bond or other security, the terms and provisions  of this Agreement. (b) In the event the Company provides an Advance Notice and the Investor fails  to perform its obligations as mandated in Section 2.02, the Investor agrees that, in addition  to and in no way limiting the rights and obligations set forth in Article V hereto and in  addition to any other remedy to which the Company is entitled at law or in equity,  





 






- 11 - US-DOCS\131770162.7 including, without limitation, specific performance, it will hold the Company harmless  against any loss, claim, damage or expense (including reasonable and documented out-of- pocket legal fees and expenses), as incurred, arising out of or in connection with such  default by the Investor and acknowledges that irreparable damage may occur in the event  of any such default. It is accordingly agreed that the Company shall be entitled to an  injunction or injunctions to prevent such breaches of this Agreement and to specifically  enforce (subject to Applicable Laws and other rules of the SEC and the Principal Market),  without the posting of a bond or other security, the terms and provisions of this Agreement. Section 2.04 Completion of Resale Pursuant to the Registration Statement. After the  Investor has purchased the full Commitment Amount and has completed the subsequent resale of  the full Commitment Amount pursuant to the Registration Statement, the Investor will notify the  Company that all subsequent resales are completed and the Company will be under no further  obligation to maintain the effectiveness of the Registration Statement. Section 2.05 Pre-Advance Loans.  (a) The parties hereby agree that the Company may, at any time beginning on  the date that the Company files or confidentially submits the initial Registration Statement  in accordance with Section 6.01(a), and ending five Trading Days thereafter (provided that  the conditions precedent to a Pre-Advance Loan set forth in Section 2.05(c) are then  satisfied, or waived by the Investor), request a pre-advance loan (the “Pre-Advance Loan ”) in the principal amount of $21,000,000 from the Investor by providing written notice of  such request to the Investor (the “Request”). The closing of the Pre-Advance Loan shall  take place on the third Trading Day following the date of such Request, or such earlier date  as may be agreed by the Investor (the “Pre-Advance Date”). On the Pre-Advance Date (i)  the Investor shall pay to the Company the principal amount of the Pre-Advance Loan, less  a 4.76% original issue discount, in immediately available funds to an account designated  by the Company in writing and transmit notification to the Company that such funds  transfer has been initiated, and (ii) the Company shall deliver to the Investor a promissory  note evidencing the Pre-Advance Loan on the terms and conditions of, and substantially in  the form set forth on, Exhibit C attached hereto (the “Promissory Note”), duly executed on  behalf of the Company. (b) Conditions to First Pre-Advance Loan. The right of the Company to request  the Pre-Advance Loan, and the obligations of the Investor to advance to the Company the  principal amount of the Pre-Advance Loan on the Pre-Advance Date, shall be subject to  the timely performance by the Company of its obligations hereunder, and the satisfaction,  unless waived by the Investor, as of the date of the Request and as of the Pre-Advance  Date, of each of the following conditions:  (i) Advance Notice Conditions. The satisfaction of all the conditions  precedent to the right of the Company to deliver an Advance Notice set forth in  Section 7.01(a), (d), (e) and (f) shall be satisfied.  (ii) Registration Statement. The company shall have filed or  confidentially submitted with the SEC an initial Registration Statement covering  





 






- 12 - US-DOCS\131770162.7 the resale by the Investor of Shares and the value of the Shares (based on the  average of the daily VWAP during the five Trading Days prior to the date of  determination) shall be no less than 1.5 times the principal amount of the Pre- Advance Loan.  (iii) Authority. The issuance of the Promissory Note in respect of the  Pre-Advance Loan, and the performance by the Company thereunder, including,  without limitation, the payment obligations, is legally permitted by all laws and  regulations to which the Company is subject and is not in conflict with, or  prohibited by, the organizational documents of the Company or any contract,  agreement or arrangement with any third party. (iv) No Suspension of Trading in or Delisting of Class A Common  Stock. The Class A Common Stock is quoted for trading on the Principal Market.  The Company shall have the capacity to issue such number of Shares with a  market value (based on the average of the daily VWAP during the five Trading  Days prior to the date of the Request) of no less than 1.5 times the principal  amount of the Pre-Advance Loan without breaching the Exchange Cap. The  Company shall not have received any written notice that is then still pending  threatening the continued quotation of the Class A Common Stock on the  Principal Market. (v) Bring Down Certificate. The Investor shall have received on and as  of the Pre-Advance Date a certificate of an executive officer of the Company  confirming that all of the representations and warranties of the Company in this  Agreement are true and correct on and as of the Pre-Advance Loan Date, and that  the Company has complied with all agreements and covenants and satisfied all  other conditions on its part to be performed or satisfied hereunder at or prior to  the Pre-Advance Date.  (vi) Prohibited Indebtedness. As of the date of determination, neither the  Company, nor any of its Subsidiaries, shall have existing any Indebtedness (as  defined in the Promissory Note) which would be prohibited indebtedness  pursuant to Section 6.18 hereof. Article III. Representations and Warranties of Investor The Investor represents and warrants to the Company, as of the date hereof, the Pre- Advance Date, each Advance Notice Date and each Advance Date that: Section 3.01 Organization and Authorization. The Investor is an entity duly organized,  validly existing and in good standing under the laws of the Cayman Islands and has all requisite  power and authority to execute, deliver and perform its obligations under the Transaction  Documents to which it is a party, including all transactions contemplated hereby and thereby, and  to purchase or acquire Shares in accordance with the terms hereof. The decision to invest and the  execution and delivery of the Transaction Documents to which it is a party by the Investor, the  performance by the Investor of its obligations hereunder and thereunder and the consummation by  





 






- 13 - US-DOCS\131770162.7 the Investor of the transactions contemplated hereby and thereby have been duly authorized and  require no other proceedings on the part of the Investor. The undersigned has the right, power and  authority to execute and deliver the Transaction Documents to which it is a party and all other  instruments on behalf of the Investor or its shareholders. This Agreement and the other Transaction  Documents to which the Investor is a party have been duly executed and delivered by the Investor  and, assuming the execution and delivery hereof and acceptance thereof by the Company, will  constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor  in accordance with its terms. Section 3.02 Evaluation of Risks. The Investor has such knowledge and experience in  financial, tax and business matters as to be capable of evaluating the merits and risks of, and  bearing the economic risks entailed by, an investment in the Shares and the Promissory Note and  of protecting its interests in connection with the transactions contemplated hereby. The Investor  acknowledges and agrees that its investment in the Company involves a high degree of risk, and  that the Investor may lose all or a part of its investment.  Section 3.03 No Legal, Investment or Tax Advice from the Company. The Investor  acknowledges that it had the opportunity to review the Transaction Documents and the transactions  contemplated by the Transaction Documents with its own legal counsel and investment and tax  advisors. The Investor is relying solely on such counsel and advisors and not on any statements or  representations of the Company or any of the Company’s representatives or agents for legal, tax,  investment or other advice with respect to the Investor’s acquisition of Shares or the Promissory  Note hereunder, the transactions contemplated by this Agreement or the laws of any jurisdiction,  and the Investor acknowledges that the Investor may lose all or a part of its investment.  Section 3.04 Investment Purpose. The Investor is acquiring the Shares and the  Promissory Note for its own account, for investment purposes and not with a view towards, or for  resale in connection with, the public sale or distribution thereof, in violation of the Securities Act  or any applicable state securities laws; provided, however, that by making the representations  herein, the Investor does not agree, or make any representation or warranty, to hold any of the  Shares for any minimum or other specific term and reserves the right to dispose of the Shares at  any time in accordance with, or pursuant to, a Registration Statement filed pursuant to this  Agreement or an applicable exemption under the Securities Act. The Investor agrees not to sell,  hypothecate or otherwise transfer the Shares except pursuant to the Registration Statement in  which the resale of such Shares is registered under the Securities Act, in a manner described under  the caption “Plan of Distribution” in such Registration Statement, and in a manner in compliance  with all applicable federal and state securities laws, rules and regulations, or unless, in the opinion  of counsel satisfactory to the Company, an exemption from such registration is available. The  Investor does not presently have any agreement or understanding, directly or indirectly, with any  Person to sell or distribute any of the Shares or the Promissory Note. The Investor is acquiring the  Shares and the Promissory Note hereunder in the ordinary course of its business. The Investor  acknowledges that it will be disclosed as an “underwriter” and a “selling stockholder” in each  Registration Statement and in any Prospectus or Prospectus Supplement to the extent required by  Applicable Laws. Section 3.05 Accredited Investor. The Investor is an “accredited investor” as that term is  defined in Rule 501(a)(3) of Regulation D. 





 






- 14 - US-DOCS\131770162.7 Section 3.06 Reliance on Exemptions. The Investor understands that the Shares and the  Promissory Note are being offered and sold to it in reliance on specific exemptions from the  registration requirements of U.S. federal and state securities laws and that the Company is relying  in part upon the truth and accuracy of, and the Investor’s compliance with, the representations,  warranties, agreements, acknowledgments and understandings of the Investor set forth herein in  order to determine the availability of such exemptions and the eligibility of the Investor to acquire  the Shares and the Promissory Note. Section 3.07 No Governmental Review. The Investor understands that no U.S. federal or  state agency or any other government or governmental agency has passed on or made any  recommendation or endorsement of the Shares or the Promissory Note or the fairness or suitability  of an investment in the Shares or the Promissory Note, nor have such authorities passed upon or  endorsed the merits of the offering of the Shares or the Promissory Note. Section 3.08 Information. The Investor and its advisors (and its counsel), if any, have  been furnished with all materials relating to the business, finances and operations of the Company  and information the Investor deemed material to making an informed investment decision. The  Investor and its advisors (and its counsel), if any, have been afforded the opportunity to ask  questions of the Company and its management and have received answers to such questions.  Neither such inquiries nor any other due diligence investigations conducted by such Investor or its  advisors (and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s  right to rely on the Company’s representations and warranties contained in this Agreement. The  Investor acknowledges and agrees that the Company has not made to the Investor, and the Investor  acknowledges and agrees it has not relied upon, any representations and warranties of the  Company, its employees or any third party other than the representations and warranties of the  Company contained in this Agreement. The Investor understands that its investment involves a  high degree of risk. The Investor has sought such accounting, legal and tax advice, as it has  considered necessary to make an informed investment decision with respect to the transactions  contemplated hereby. Section 3.09 Not an Affiliate. The Investor is not an officer, director or a person that,  directly or indirectly through one or more intermediaries, controls or is controlled by, or is under  common control with, the Company or any “affiliate” of the Company (as that term is defined in  Rule 405 promulgated under the Securities Act).  Section 3.10 No Prior Short Sales. At no time prior to the date of this Agreement has the  Investor, its sole member, any of their respective officers or any entity managed or controlled by  the Investor or its sole member engaged in or effected, in any manner whatsoever, directly or  indirectly, for its own principal account, any (i) “short sale” (as such term is defined in Rule 200  of Regulation SHO of the Exchange Act) of the Class A Common Stock or (ii) hedging transaction,  which establishes a net short position with respect to the Class A Common Stock that remains in  effect as of the date of this Agreement.  Section 3.11 General Solicitation. The investor is not purchasing or acquiring the Shares  as a result of, and neither the Investor nor any of its affiliates, nor any person acting on its or their  behalf, has engaged or will engage in, any form of general solicitation or general advertising  (within the meaning of Regulation D) in connection with any offer or sale of the Shares. 





 






- 15 - US-DOCS\131770162.7 Section 3.12 Broker-Dealer Relationships. The Investor shall, from time to time, provide  the Company and the Company’s transfer agent with all information regarding any broker-dealer  used to effectuate sales of Shares that it may purchase pursuant to this Agreement (each, a “Broker- Dealer”) as reasonably requested by the Company and for which such information is required in  order for the Company to carry out its obligations under this Agreement or comply with any  Applicable Laws. The Investor shall be solely responsible for all fees and commissions of the  Broker-Dealer (if any), which shall not exceed customary brokerage fees and commissions, and  shall be responsible for designating only a DTC participant eligible to receive Shares via DWAC. Article IV. Representations and Warranties of the Company Except as set forth in the SEC Documents, the Company represents and warrants to the  Investor, as of the date hereof, the Pre-Advance Date, each Advance Notice Date and each  Advance Date (other than representations and warranties that address matters only as of a certain  date, which shall be true and correct as written as of such certain date), that: Section 4.01 Organization and Qualification. Each of the Company and its Subsidiaries  is an entity duly organized and validly existing under the laws of their respective jurisdictions of  organization or incorporation, and has the requisite power and authority to own its properties and  to carry on its business as now being conducted. Each of the Company and its Subsidiaries is duly  qualified to do business and is in good standing (to the extent applicable) in every jurisdiction in  which the nature of the business conducted by it makes such qualification necessary, except to the  extent that the failure to be so qualified or be in good standing would not reasonably be expected  to have a Material Adverse Effect.  Section 4.02 Authorization, Enforcement, Compliance with Other Instruments. The  Company has the requisite corporate power and authority to enter into and perform its obligations  under this Agreement, the Promissory Note and the other Transaction Documents and to issue the  Shares in accordance with the terms hereof and thereof. The execution and delivery by the  Company of this Agreement and the other Transaction Documents, and the consummation by the  Company of the transactions contemplated hereby and thereby (including, without limitation, the  issuance of the Shares) have been or (with respect to consummation) will be duly authorized by  the Company and no further consent or authorization will be required by the Company, its board  of directors or its stockholders. This Agreement and the other Transaction Documents to which  the Company is a party have been (or, when executed and delivered, will be) duly executed and  delivered by the Company and, assuming the execution and delivery thereof and acceptance by the  Investor, constitute (or, when duly executed and delivered, will constitute) the legal, valid and  binding obligations of the Company, enforceable against the Company in accordance with their  respective terms, except as such enforceability may be limited by general principles of equity or  applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws relating  to, or affecting generally, the enforcement of applicable creditors’ rights and remedies, and except  as rights to indemnification and to contribution may be limited by federal or state securities law.  Section 4.03 Authorization of the Shares. The Shares under this Agreement have been  or, with respect to Shares to be purchased by the Investor pursuant to an Advance Notice, will be,  when issued and delivered pursuant to the terms approved by the board of directors of the Company  or a duly authorized committee thereof, or a duly authorized executive committee, against payment  





 






- 16 - US-DOCS\131770162.7 therefor as provided herein, duly and validly authorized and issued and fully paid and non- assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim,  including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other  similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Shares, when  issued, will conform to the description thereof set forth in or incorporated into the Prospectus. Section 4.04 No Conflict. The execution, delivery and performance of the Transaction  Documents by the Company and the consummation by the Company of the transactions  contemplated hereby and thereby (including, without limitation, the issuance of the Shares) will  not (i) result in a violation of the articles of incorporation or other organizational documents of the  Company or its Subsidiaries (with respect to consummation, as the same may be amended prior to  the date on which any of the transactions contemplated hereby are consummated), (ii) conflict  with, or constitute a default (or an event which with notice or lapse of time, or both, would become  a default) under, or give to others any rights of termination, amendment, acceleration or  cancellation of, any agreement, indenture or instrument to which the Company or its Subsidiaries  is a party or (iii) result in a violation of any law, rule, regulation, order, judgment or decree  (including federal and state securities laws and regulations) applicable to the Company or its  Subsidiaries or by which any property or asset of the Company or its Subsidiaries is bound or  affected except, in the case of clause (ii) or (iii) above, to the extent such violations that would not  reasonably be expected to have a Material Adverse Effect. Section 4.05 No Default. Except as would not reasonably be expected to have a Material  Adverse Effect, the Company is not in default in the performance or observance of any material  obligation, agreement, covenant or condition contained in any indenture, debenture, mortgage,  deed of trust or other material instrument or agreement to which it is a party or by which it or its  property is bound. Section 4.06 SEC Documents. The Company has filed all reports, schedules, forms,  statements and other documents required to be filed by it with the SEC pursuant to the Exchange  Act since November 4, 2021 (such filings and all exhibits included therein and financial statements  and schedules thereto, and all registration statements publicly filed by the Company under the  Securities Act, being hereinafter referred to as the “SEC Documents”). The Company has delivered  or made available to the Investor through the SEC’s website at http://www.sec.gov, true and  complete copies of the SEC Documents. As of their respective dates (or, with respect to any filing  that has been amended or superseded, the date of such amendment or superseding filing), the SEC  Documents complied in all material respects with the requirements of the Exchange Act or the  Securities Act, as applicable, and the rules and regulations of the SEC promulgated thereunder  applicable to the SEC Documents, and did not contain any untrue statement of a material fact or  omit 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.  Section 4.07 Financial Statements. The consolidated financial statements of the  Company included in the SEC Documents, together with the related notes and schedules, present  fairly, in all material respects, the consolidated financial position of the Company and its  Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and  changes in stockholders’ equity of the Company for the periods specified and have been prepared  in compliance with the requirements of the Securities Act and Exchange Act and in conformity  





 






- 17 - US-DOCS\131770162.7 with generally accepted accounting principles in the United States (“GAAP”) applied on a  consistent basis (except for (i) such adjustments to accounting standards and practices as are noted  therein, (ii) in the case of unaudited interim financial statements, to the extent such financial  statements may not include footnotes required by GAAP or may be condensed or summary  statements, and (iii) such adjustments that are not material, either individually or in the aggregate)  during the periods involved; the other financial and statistical data with respect to the Company  and its Subsidiaries contained in the SEC Documents are accurately and fairly presented and  prepared on a basis consistent with the financial statements and books and records of the Company;  there are no financial statements (historical or pro forma) that are required to be included in the  SEC Documents that are not included as required; the Company and its Subsidiaries do not have  any material liabilities or obligations, direct or contingent (including any off-balance sheet  obligations), not described in the SEC Documents (excluding the exhibits thereto); and all  disclosures contained in the SEC Documents regarding “non-GAAP financial measures” (as such  term is defined by the rules and regulations of the SEC) comply in all material respects with  Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the  extent applicable. The interactive data in eXtensible Business Reporting Language included in the  SEC Documents fairly presents the information called for in all material respects and has been  prepared in accordance with the SEC’s rules and guidelines applicable thereto.  Section 4.08 Registration Statement and Prospectus. The Company and the transactions  contemplated by this Agreement meet the requirements for and comply with the conditions for the  use of Form S-1 under the Securities Act. Each Registration Statement and the offer and sale of  Shares as contemplated hereby, if and when filed, will meet the requirements of Rule 415 under  the Securities Act and will comply in all material respects with Rule 415 under the Securities Act.  Any contracts or other documents that are required to be described in a Registration Statement or  a Prospectus, or to be filed as exhibits to a Registration Statement, will be so described or filed.  The Company has not distributed and, prior to the later to occur of each Settlement Date and  completion of the distribution of the Shares, will not distribute any offering material in connection  with the offering or sale of the Shares other than a Registration Statement and the Prospectus to  which the Investor has consented, which consent shall not be unreasonably withheld, other than as  required by Applicable Laws. Section 4.09 No Misstatement or Omission. Each Registration Statement, when it  became or becomes effective, will not contain an untrue statement of a material fact or omit to  state a material fact required to be stated therein or necessary to make the statements therein not  misleading. Each Prospectus will not include an untrue statement of a material fact or omit to state  a material fact necessary to make the statements therein, in light of the circumstances under which  they were made, not misleading. The foregoing shall not apply to statements in, or omissions from,  any such document made in reliance upon, and in conformity with, information furnished to the  Company by the Investor specifically for use in the preparation thereof. Section 4.10 Conformity with Securities Act and Exchange Act. Each Registration  Statement and each Prospectus, or any amendment or supplement thereto, when such documents  are filed with the SEC under the Securities Act or become effective under the Securities Act, as  the case may be, will conform in all material respects with the requirements of the Securities Act. Section 4.11 Equity Capitalization. As of the date hereof, the authorized capital of the  





 






- 18 - US-DOCS\131770162.7 Company consists of 1,160,000,000 shares of capital stock, of which 1,000,000,000 shares are  designated as Class A Common Stock, 10,000,000 shares are designated as Class B common stock,  par value $0.0001 per share (the “Class B Common Stock”), 50,000,000 shares are designated as  Class X common stock, par value $0.0001 per share (the “Class X Common Stock”), and  100,000,000 shares are undesignated preferred stock (the “Preferred Stock”). As of the date hereof,  the Company had 242,204,551 shares of Class A Common Stock, no shares of Class B Common  Stock outstanding, 34,534,930 shares of Class X Common Stock and no shares of Preferred Stock  outstanding. Section 4.12 Principal Market Listing. The Class A Common Stock is registered pursuant  to Section 12(b) of the Exchange Act and is currently listed on the Principal Market under the  trading symbol “BRDS.” The Company has taken no action designed to, or reasonably likely to  have the effect of, terminating the registration of the Class A Common Stock under the Exchange  Act or delisting the Class A Common Stock from the Principal Market, nor has the Company  received any notification that the SEC or the Principal Market is contemplating terminating such  registration or listing. To the Company’s knowledge, it is in compliance with all applicable listing  requirements of the Principal Market in all material respects. Section 4.13 Intellectual Property Rights. Except as would not reasonably be expected to  have a Material Adverse Effect: (i) the Company and its Subsidiaries own or possess adequate  rights or licenses to use all material trademarks, trade names, service marks, service mark  registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,  governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective  businesses as now conducted; (ii) the Company and its Subsidiaries have not received written  notice of any infringement by the Company or its Subsidiaries of trademarks, trade names, service  marks, service mark registrations, service names, patents, patent rights, copyrights, inventions,  licenses or trade secrets; and (iii) to the knowledge of the Company, there is no material claim,  action or proceeding being made, brought against or threatened against the Company or its  Subsidiaries regarding trademark, trade name, service mark, service mark registration, service  name, patent, patent right, copyright, invention, license, trade secret or other infringement.  Section 4.14 Employee Relations. Except as would not reasonably be expected to have a  Material Adverse Effect, neither the Company nor any of its Subsidiaries is involved in any labor  dispute and, to the knowledge of the Company or any of its Subsidiaries, no such dispute is  threatened. Section 4.15 Environmental Laws. The Company and its Subsidiaries (i) have not  received written notice alleging any failure to comply in all material respects with all  Environmental Laws, (ii) have received all permits, licenses or other approvals required of them  under applicable Environmental Laws to conduct their respective businesses and (iii) have not  received written notice alleging any failure to comply with all terms and conditions of any such  permit, license or approval where, in each of the foregoing clauses (i), (ii) and (iii), the failure to  so comply would be reasonably expected to have, individually or in the aggregate, a Material  Adverse Effect. The term “Environmental Laws” means all applicable federal, state and local laws  relating to pollution or protection of human health or the environment (including, without  limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including,  without limitation, laws relating to emissions, discharges, releases or threatened releases of  





 






- 19 - US-DOCS\131770162.7 chemicals, pollutants, contaminants or toxic or hazardous substances or wastes (collectively,  “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing,  distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as  well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments,  licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated  or approved thereunder.  Section 4.16 Title. Except as would not reasonably be expected to have a Material  Adverse Effect, (i) the Company (or its Subsidiaries) has indefeasible fee simple or leasehold title  to its properties and material assets owned by it, free and clear of any pledge, lien, security interest,  encumbrance, claim or equitable interest, other than such as are not material to the business of the  Company and its Subsidiaries and (ii) any real property and facilities held under lease by the  Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with  such exceptions as are not material and do not interfere with the use made and proposed to be made  of such property and buildings by the Company and its Subsidiaries. Section 4.17 Insurance. Except as would not reasonably be expected to have a Material  Adverse Effect, (i) the Company and its Subsidiaries are insured by insurers of recognized  financial responsibility against such losses and risks and in such amounts as management of the  Company believes to be prudent and customary in the businesses in which the Company and its  Subsidiaries are engaged and (ii) the Company has no reason to believe that it will not be able to  renew its existing insurance coverage as and when such coverage expires, or to obtain similar  coverage from similar insurers. Section 4.18 Regulatory Permits. Except as would not reasonably be expected to have a  Material Adverse Effect, (i) the Company and its Subsidiaries possess all material certificates,  authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities  necessary to own their respective businesses, and (ii) neither the Company nor any such Subsidiary  has received any written notice of proceedings relating to the revocation or modification of any  such certificate, authorization or permits. Section 4.19 Internal Accounting Controls. The Company maintains a system of internal  accounting controls designed to provide reasonable assurance that (i) transactions are executed in  accordance with management’s general or specific authorizations, (ii) transactions are recorded as  necessary to permit preparation of financial statements in conformity with generally accepted  accounting principles and to maintain asset accountability, (iii) access to assets is permitted only  in accordance with management’s general or specific authorization and (iv) the recorded  accountability for assets is compared with the existing assets at reasonable intervals and  appropriate action is taken with respect to any differences. Section 4.20 Absence of Litigation. Except as would not reasonably be expected to have  a Material Adverse Effect, there is no action, suit, proceeding, inquiry or investigation before or  by any court, public board, government agency, self-regulatory organization or body pending  against or affecting the Company, the Shares or any of the Company’s Subsidiaries. Section 4.21 Tax Status. Except as would not reasonably be expected to have a Material  Adverse Effect, each of the Company and its Subsidiaries (i) has timely made or filed all foreign,  





 






- 20 - US-DOCS\131770162.7 federal and state income and all other tax returns, reports and declarations required by any  jurisdiction to which it is subject, (ii) has timely paid all taxes and other governmental assessments  and charges that are material in amount, shown or determined to be due on such returns, reports  and declarations, except those being contested in good faith, and (iii) has set aside on its books  provision reasonably adequate for the payment of all taxes for periods subsequent to the periods  to which such returns, reports or declarations apply. Except as would not reasonably be expected  to have a Material Adverse Effect, the Company has not received written notification of any unpaid  taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the  officers of the Company know of no basis for any such claim. Section 4.22 Certain Transactions. To the knowledge of the Company, none of the  officers or directors of the Company is presently a party to any transaction with the Company has  either directly or indirectly any interest in, or is a party to, any transaction that would be required  to be disclosed as a related party transaction pursuant to Rule 404 of Regulation S-K promulgated  under the Securities Act. Section 4.23 Rights of First Refusal. Except as have been validly waived or complied  with, the Company is not obligated to offer the Shares offered hereunder or the Promissory Note  on a right of first refusal basis to any third parties, including, but not limited to, current or former  stockholders of the Company, underwriters, brokers, agents or other third parties.  Section 4.24 Dilution. The Company is aware and acknowledges that the issuance of the  Shares hereunder could cause dilution to existing stockholders and could significantly increase the  outstanding number of shares of Class A Common Stock. Section 4.25 Acknowledgment Regarding Investor’s Purchase of Shares and Promissory  Notes. The Company acknowledges and agrees that the Investor is acting solely in the capacity of  an arm’s-length investor with respect to this Agreement and the transactions contemplated  hereunder. The Company further acknowledges that the Investor is not acting as a financial advisor  or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the  transactions contemplated hereunder, and any advice given by the Investor or any of its  representatives or agents in connection with this Agreement and the transactions contemplated  hereunder is merely incidental to the Investor’s purchase of the Shares hereunder or the Promissory  Notes. The Company is aware and acknowledges that it shall not be able to request Advances  under this Agreement if the Registration Statement is not effective or if any issuances of Advance  Shares pursuant to any Advances would violate any rules of the Principal Market. The Company  acknowledges and agrees that it is capable of evaluating and understanding, and understands and  accepts, the terms, risks and conditions of the transactions contemplated by this Agreement.  Section 4.26 Relationship of the Parties. Neither the Company nor any of its Subsidiaries  is a client or customer of the Investor or, to the Company’s knowledge, any of its affiliates, and  neither the Investor nor, to the Company’s knowledge, any of its affiliates has provided, or will  provide, any services to the Company or its Subsidiaries other than as contemplated hereby. The  Investor’s relationship to the Company is solely as an investor as provided for in the Transaction  Documents.  Section 4.27 Forward-Looking Statements. Except as would not reasonably be expected  





 






- 21 - US-DOCS\131770162.7 to have a Material Adverse Effect, no forward-looking statement (within the meaning of Section  27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration  Statement or a Prospectus will be made or reaffirmed without a reasonable basis or will be  disclosed other than in good faith. Section 4.28 Compliance with Laws. Except as would not reasonably be expected to have  a Material Adverse Effect (i) the Company and each of its Subsidiaries is in compliance with  Applicable Laws and (ii) the Company has not received a notice of non-compliance by any  director, officer or employee of the Company or any Subsidiary of the Company or, to the  Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or  any Subsidiary of the Company, has not complied with Applicable Laws, and is not aware of any  pending change or contemplated change to any Applicable Laws with respect to the Company. Section 4.29 Sanctions Matters. Neither the Company nor any of its Subsidiaries or, to  the knowledge of the Company, any director, officer or controlled affiliate of the Company or any  director or officer of any Subsidiary, is a Person that is, or is owned or controlled by a Person that  is, (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s  Office of Foreign Asset Control (“OFAC”), the United Nations Security Council, the European  Union, Her Majesty’s Treasury or other relevant sanctions authorities with jurisdiction over the  Company and its Subsidiaries, including, without limitation, designation on OFAC’s Specially  Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions Evaders List  (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the  subject of Sanctions that broadly prohibit dealings with that country or territory (including, without  limitation, the Crimea region, the Donetsk People’s Republic and Luhansk People’s Republic in  the Ukraine, Cuba, Iran, North Korea, Sudan and Syria (the “Sanctioned Countries”)). Neither the  Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the sale of  Advance Shares or the Promissory Note, or lend, contribute or otherwise make available such  proceeds to any subsidiary, joint venture partner or other Person, (a) for the purpose of funding or  facilitating any activities or business of or with any Person or in any country or territory that, at  the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country or  (b) in any other manner that will knowingly result in a violation of Sanctions or Applicable Laws  by any Person (including any Person participating in the transactions contemplated by this  Agreement, whether as underwriter, advisor, investor or otherwise). For the past five years, neither  the Company nor any of its Subsidiaries has engaged in, and is now not engaged in, any dealings  or transactions with any Person, or in any country or territory, that at the time of the dealing or  transaction is or was the subject of Sanctions or was a Sanctioned Country.  Article V.  Indemnification The Investor and the Company represent to the other the following with respect to itself: Section 5.01 Indemnification by the Company. In consideration of the Investor’s  execution and delivery of this Agreement, and in addition to all of the Company’s other obligations  under this Agreement, the Company shall defend, protect, indemnify and hold harmless the  Investor and its investment manager, Yorkville Advisors Global, LP, and each of their respective  officers, directors, partners, employees and agents (including, without limitation, those retained in  connection with the transactions contemplated by this Agreement) and each person who controls  





 






- 22 - US-DOCS\131770162.7 the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange  Act (collectively, the “Investor Indemnitees”) from and against any and all actions, causes of  action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable and  documented out-of-pocket expenses in connection therewith, and including reasonable and  documented out-of-pocket attorneys’ fees and disbursements (the “Indemnified Liabilities”), in  each case, incurred by the Investor Indemnitees or any of them as a result of, or arising out of or  relating to: (a) any untrue statement or alleged untrue statement of a material fact contained in the  Registration Statement for the registration of the Shares as originally filed or in any amendment  thereof, or in any related Prospectus, or in any amendment thereof or supplement thereto, or the  omission or alleged omission to state therein a material fact required to be stated therein or  necessary to make the statements therein not misleading; provided, however, that the Company  will not be liable in any such case to the extent that any such loss, claim, damage or liability arises  out of or is based upon any such untrue statement omission or alleged untrue statement or omission  made therein in reliance upon and in conformity with written information furnished to the  Company by or on behalf of the Investor specifically for inclusion therein; (b) any material  misrepresentation or breach of any material representation or material warranty made by the  Company in this Agreement or any other certificate, instrument or document contemplated hereby  or thereby; or (c) any material breach of any material covenant, material agreement or material  obligation of the Company contained in this Agreement or any other certificate, instrument or  document contemplated hereby or thereby. To the extent that the foregoing undertaking by the  Company may be unenforceable under Applicable Laws, the Company shall make the maximum  contribution to the payment and satisfaction of each of the Indemnified Liabilities permissible  under Applicable Laws. Section 5.02 Indemnification by the Investor. In consideration of the Company’s  execution and delivery of this Agreement, and in addition to all of the Investor’s other obligations  under this Agreement, the Investor shall defend, protect, indemnify and hold harmless the  Company and all of its officers, directors, managers, members, stockholders, employees and agents  (including, without limitation, those retained in connection with the transactions contemplated by  this Agreement) and each person who controls the Company within the meaning of Section 15 of  the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”)  from and against any and all Indemnified Liabilities incurred by the Company Indemnitees or any  of them as a result of, or arising out of or relating to: (a) any untrue statement or alleged untrue  statement of a material fact contained in the Registration Statement for the registration of the  Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any  amendment thereof or supplement thereto, or the omission or alleged omission to state therein a  material fact required to be stated therein or necessary to make the statements therein not  misleading; provided, however, that the Investor will only be liable for written information relating  to the Investor furnished to the Company by or on behalf of the Investor specifically for inclusion  in the documents referred to in the foregoing indemnity; (b) any misrepresentation or breach of  any representation or warranty made by the Investor in this Agreement or any instrument or  document contemplated hereby or thereby executed by the Investor; or (c) any breach of any  covenant, agreement or obligation of the Investor contained in this Agreement or any other  certificate, instrument or document contemplated hereby or thereby executed by the Investor. To  the extent that the foregoing undertaking by the Investor may be unenforceable under Applicable  Laws, the Investor shall make the maximum contribution to the payment and satisfaction of each  of the Indemnified Liabilities permissible under Applicable Laws. 





 






- 23 - US-DOCS\131770162.7 Section 5.03 Notice of Claim. Promptly after receipt by an Investor Indemnitee or  Company Indemnitee of notice of the commencement of any action or proceeding (including any  governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee  or Company Indemnitee, as applicable, shall, if a claim for an Indemnified Liability in respect  thereof is to be made against any indemnifying party under this Article V, deliver to the  indemnifying party a written notice of the commencement thereof; but the failure to so notify the  indemnifying party will not relieve it of liability under this Article V except to the extent the  indemnifying party is prejudiced by such failure. The indemnifying party shall have the right to  participate in, and, to the extent the indemnifying party so desires, jointly with any other  indemnifying party similarly noticed, to assume control of the defense thereof with counsel  mutually reasonably satisfactory to the indemnifying party and the Investor Indemnitee or  Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee or  Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable  third-party fees and expenses of not more than one counsel for such Investor Indemnitee or  Company Indemnitee to be paid by the indemnifying party, if, in the reasonable opinion of counsel  retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee  or Company Indemnitee and the indemnifying party would be inappropriate due to actual or  potential differing interests between such Investor Indemnitee or Company Indemnitee and any  other party represented by such counsel in such proceeding. The Investor Indemnitee or Company  Indemnitee shall cooperate fully with the indemnifying party in connection with any negotiation  or defense of any such action or claim by the indemnifying party and shall furnish to the  indemnifying party all information reasonably available to the Investor Indemnitee or Company  Indemnitee which relates to such action or claim. The indemnifying party shall keep the Investor  Indemnitee or Company Indemnitee reasonably apprised as to the status of the defense or any  settlement negotiations with respect thereto. No indemnifying party shall be liable for any  settlement of any action, claim or proceeding effected without its prior written consent; provided,  however, that the indemnifying party shall not unreasonably withhold, delay or condition its  consent. No indemnifying party shall, without the prior written consent of the Investor Indemnitee  or Company Indemnitee, as applicable, consent to entry of any judgment or enter into any  settlement or other compromise which does not include as an unconditional term thereof the giving  by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee of a release from  all liability in respect to such claim or litigation. Following indemnification as provided for  hereunder, the indemnifying party shall be subrogated to all rights of the Investor Indemnitee or  Company Indemnitee with respect to all third parties, firms or corporations relating to the matter  for which indemnification has been made. The indemnification required by this Article V shall be  made by periodic payments of the amount thereof during the course of the investigation or defense,  as and when bills are received and payment therefor is due, subject to receipt by the indemnifying  party of an undertaking to repay any amounts that such party is ultimately not entitled to receive  as indemnification pursuant to this Agreement. Section 5.04 Remedies. The remedies provided for in this Article V are not exclusive and  shall not limit any right or remedy that may be available to any indemnified person at law or equity.  The obligations of the parties to indemnify or make contribution under this Article V shall survive  expiration or termination of this Agreement. Notwithstanding anything to the contrary under this  Agreement or Applicable Laws, no party shall be entitled to any indemnification pursuant to this  Article V (other than claims for any damages resulting from fraud) until the aggregate amount of  all such damages that would otherwise be indemnifiable to such party equals or exceeds $25,000  





 






- 24 - US-DOCS\131770162.7 (the “Basket”), at which time such party shall be entitled to indemnification for the full amount of  all damages (including all damages incurred prior to exceeding the Basket). Section 5.05 Limitation of liability. Notwithstanding the foregoing, no party shall be  entitled to recover from the other party for punitive, indirect, incidental or consequential damages. Article VI.  Covenants of the Company The Company covenants with the Investor, and the Investor covenants with the Company,  as follows, which covenants of one party are for the benefit of the other party, during the  Commitment Period: Section 6.01 Registration Statement. (a) Filing of a Registration Statement. On or prior to the thirtieth day following  the date hereof, the Company shall prepare and submit or file with the SEC an initial  Registration Statement on Form S-1 covering the resale by the Investor of Registrable  Securities. The Company in its sole discretion may choose when to submit or file such  initial Registration Statement prior to the thirtieth day following the date hereof, but shall  not have the ability to request any Advances until the effectiveness of a Registration  Statement. The Company shall use its commercially reasonable efforts to have such  Registration Statement declared effective by the SEC as soon as practicable after the filing  thereof, but no later than 90 days after the filing thereof. The Company shall use  commercially reasonable efforts to file with the SEC in accordance with Rule 424 under  the Securities Act, by 9:30 am on the business day following the date of effectiveness of  the Registration Statement, the final Prospectus to be used in connection with sales of  Shares pursuant to such Registration Statement.  (b) Maintaining a Registration Statement. The Company shall use  commercially reasonable efforts to maintain the effectiveness of any Registration  Statement that has been declared effective at all times during the Commitment Period;  provided, however, that if the Company has received notification pursuant to Section 2.04  that the Investor has completed resales of Shares pursuant to the Registration Statement for  the full Commitment Amount, then the Company shall be under no further obligation to  maintain the effectiveness of the Registration Statement. Notwithstanding anything to the  contrary contained in this Agreement, the Company shall use commercially reasonable  efforts to ensure that, when filed, each Registration Statement (including, without  limitation, all amendments and supplements thereto) and the Prospectus (including,  without limitation, all amendments and supplements thereto) used in connection with such  Registration Statement shall not contain any untrue statement of a material fact or omit to  state a material fact required to be stated therein, or necessary to make the statements  therein (in the case of Prospectuses, in the light of the circumstances in which they were  made) not misleading. During the Commitment Period, the Company shall notify the  Investor promptly if (i) the Registration Statement shall cease to be effective under the  Securities Act, (ii) the Shares shall cease to be authorized for listing on the Principal Market  or (iii) the Class A Common Stock shall cease to be registered under Section 12(b) or  





 






- 25 - US-DOCS\131770162.7 Section 12(g) of the Exchange Act. During such time that the Investor is informed that the  Registration Statement is no longer effective under clause (i) above, the Investor agrees  not to sell any Class A Common Stock of the Company pursuant to such Registration  Statement, but may sell shares pursuant to an exemption from registration, if available. (c) Filing Procedures. Not less than one business day prior to the filing of a  Registration Statement and not less than one business day prior to the filing of any related  amendments and supplements to any Registration Statement (except for any amendments  or supplements caused by the filing of any annual reports on Form 10-K, quarterly reports  on Form 10-Q, current reports on Form 8-K and any similar or successor reports or  Prospectus Supplements or post-effective amendments to Registration Statements, the  contents of which are limited to that set forth in such reports), the Company shall furnish  to the Investor copies of all such documents proposed to be filed, which documents (other  than those filed pursuant to Rule 424 promulgated under the Securities Act) will be subject  to the reasonable and prompt review of the Investor (in each of which cases, if such  document contains material non-public information as consented to by the Investor  pursuant to Section 6.11, the information provided to the Investor will be kept strictly  confidential until filed and treated as subject to Section 6.08). The Investor shall furnish  comments on a Registration Statement and any related amendment and supplement to a  Registration Statement to the Company within 24 hours of the receipt thereof for comments  thereon. If the Investor fails to provide comments to the Company within such 24-hour  period, then the Registration Statement, related amendment or related supplement, as  applicable, shall be deemed accepted by the Investor in the form originally delivered by  the Company to the Investor. (d) Delivery of Final Documents. The Company shall furnish to the Investor  without charge, (i) at least one copy of each Registration Statement as declared effective  by the SEC and any amendment(s) thereto, including financial statements and schedules,  all exhibits and each preliminary Prospectus, (ii) at the request of the Investor, at least one  copy of the final Prospectus included in such Registration Statement and all amendments  and supplements thereto (or such other number of copies as the Investor may reasonably  request) and (iii) such other documents as the Investor may reasonably request from time  to time in order to facilitate the disposition of the Shares owned by the Investor pursuant  to a Registration Statement. Filing of the forgoing with the SEC via its EDGAR system  shall satisfy the requirements of this Section. (e) Amendments and Other Filings. The Company shall use commercially  reasonable efforts to: (i) prepare and file with the SEC such amendments (including post- effective amendments) and supplements to a Registration Statement and the related  Prospectus used in connection with such Registration Statement, which Prospectus is to be  filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to  keep such Registration Statement effective at all times during the Commitment Period, and  prepare and file with the SEC such additional Registration Statements in order to register  for resale under the Securities Act all of the Registrable Securities; (ii) cause the related  Prospectus to be amended or supplemented by any required Prospectus Supplement  (subject to the terms of this Agreement), and as so supplemented or amended to be filed  pursuant to Rule 424 promulgated under the Securities Act; (iii) provide the Investor copies  





 






- 26 - US-DOCS\131770162.7 of all written correspondence from and to the SEC relating to a Registration Statement  (provided that the Company may excise any information contained therein which would  constitute material non-public information); and (iv) comply with the provisions of the  Securities Act with respect to the disposition of all Shares covered by such Registration  Statement until such time as all of such Shares shall have been disposed of in accordance  with the intended methods of disposition by the Investor as set forth in such Registration  Statement. In the case of amendments and supplements to a Registration Statement that are  required to be filed pursuant to this Agreement (including pursuant to this Section 6.01(e))  by reason of the Company’s filing a report on Form 10-K, Form 10-Q or Form 8-K or any  analogous report under the Exchange Act, the Company shall use commercially reasonable  efforts to file such report in a Prospectus Supplement filed pursuant to Rule 424  promulgated under the Securities Act to incorporate such filing into the Registration  Statement, if applicable, or shall file such amendments or supplements with the SEC either  on the day on which the Exchange Act report is filed which created the requirement for the  Company to amend or supplement the Registration Statement, if feasible, or shall otherwise  use its commercially reasonable efforts to file it promptly thereafter. (f) Blue-Sky. The Company shall use its commercially reasonable efforts to, if  required by Applicable Laws, (i) register and qualify the Shares covered by a Registration  Statement under such other securities or “blue sky” laws of such jurisdictions in the United  States as the Investor reasonably requests, (ii) prepare and file in those jurisdictions such  amendments (including post-effective amendments) and supplements to such registrations  and qualifications as may be necessary to maintain the effectiveness thereof during the  Commitment Period, (iii) take such other actions as may be necessary to maintain such  registrations and qualifications in effect at all times during the Commitment Period and  (iv) take all other actions reasonably necessary or advisable to qualify the Shares for sale  in such jurisdictions; provided, however, that the Company shall not be required in  connection therewith or as a condition thereto to (w) make any change to its certificate of  incorporation or bylaws or any other organizational documents of the Company or any of  its Subsidiaries, (x) qualify to do business in any jurisdiction where it would not otherwise  be required to qualify but for this 0(f), (y) subject itself to taxation in any such jurisdiction  or (z) file a consent to service of process in any such jurisdiction. The Company shall  promptly notify the Investor of the receipt by the Company of any notification with respect  to the suspension of the registration or qualification of any of the Shares for sale under the  securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual  notice of the initiation or threat of any proceeding for such purpose. Section 6.02 Suspension of Registration Statement.  (a) Establishment of a Black Out Period. During the Commitment Period, the  Company from time to time may suspend the use of the Registration Statement by written  notice to the Investor in the event that the Company determines in its sole discretion in  good faith that such suspension is necessary to (A) delay the disclosure of material non- public information concerning the Company, the disclosure of which at the time is not, in  the good faith opinion of the Company, in the best interests of the Company or (B) amend  or supplement the Registration Statement or Prospectus or Prospectus Supplement so that  such Registration Statement or Prospectus or Prospectus Supplement shall not include an  





 






- 27 - US-DOCS\131770162.7 untrue statement of a material fact or omit to state a material fact required to be stated  therein or necessary to make the statements therein, in the case of any Prospectus or  Prospectus Supplement, in light of the circumstances under which they were made, not  misleading (a “Black Out Period”). (b) No Sales by Investor During the Black Out Period. During such Black Out  Period, the Investor agrees not to sell any Class A Common Stock of the Company pursuant  to such Registration Statement, but may sell shares pursuant to an exemption from  registration, if available, subject to the Investor’s compliance with Applicable Laws.  (c) Limitations on the Black Out Period. The Company shall not impose any  Black Out Period (i) on more than two occasions and, (ii) in the aggregate, for more than  60 consecutive days, or more than 120 total days, in each case, during any 12-month period.  In addition, the Company shall not deliver any Advance Notice during any Black Out  Period. If the public announcement of such material, non-public information is made  during a Black Out Period, the Black Out Period shall terminate immediately after such  announcement, and the Company shall immediately notify the Investor of the termination  of the Black Out Period. Section 6.03 Listing of Class A Common Stock. As of each Advance Date, the Shares to  be sold by the Company from time to time hereunder will have been registered under Section 12(b)  of the Exchange Act and approved for listing on the Principal Market, subject to official notice of  issuance.  Section 6.04 Opinion of Counsel. Prior to the earlier of (i) the date of the delivery by the  Company of the first Advance Notice and (ii) the Pre-Advance Date, the Investor shall have  received an opinion letter from counsel to the Company in form and substance reasonably  satisfactory to the Investor. Section 6.05 Exchange Act Registration. The Company will use commercially  reasonably efforts to file in a timely manner all reports and other documents required of it as a  reporting company under the Exchange Act and will not take any action or file any document  (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend its  reporting and filing obligations under the Exchange Act. Section 6.06 Transfer Agent Instructions. For any time while there is a Registration  Statement in effect for this transaction, the Company shall (if required by the transfer agent for the  Class A Common Stock) deliver to the transfer agent for the Class A Common Stock (with a copy  to the Investor) instructions to issue shares of Class A Common Stock to the Investor free of  restrictive legends upon each Advance if the delivery of such instructions are consistent with  Applicable Laws; provided that, the Company and its counsel shall have been furnished with such  documents as they may require for the purpose of enabling them to render the opinions or make  the statements requested by the transfer agent, or in order to evidence the accuracy of any of the  representations or warranties, or the fulfillment of any of the covenants, obligations or conditions,  contained herein. Section 6.07 Corporate Existence. The Company will use commercially reasonable  





 






- 28 - US-DOCS\131770162.7 efforts to preserve and continue the corporate existence of the Company during the Commitment  Period. Section 6.08 Notice of Certain Events Affecting Registration; Suspension of Right to  Make an Advance. The Company will promptly notify the Investor, and confirm in writing, upon  its becoming aware of the occurrence of any of the following events in respect of a Registration  Statement or related Prospectus relating to an offering of Shares (in each of which cases the  information provided to the Investor will be kept strictly confidential): (i) except for requests made  in connection with SEC or other U.S. federal or state governmental authority investigations  disclosed in the SEC Documents, receipt of any request for additional information by the SEC or  any other U.S. federal or state governmental authority during the period of effectiveness of the  Registration Statement or any request for amendments or supplements to the Registration  Statement or related Prospectus; (ii) the issuance by the SEC or any other U.S. federal  governmental authority of any stop order suspending the effectiveness of the Registration  Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with  respect to the suspension of the qualification or exemption from qualification of any of the Shares  for sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose;  (iv) the happening of any event that makes any statement made in the Registration Statement or  related Prospectus untrue in any material respect or that requires the making of any changes in the  Registration Statement or related Prospectus so that, in the case of the Registration Statement, it  will not contain any untrue statement of a material fact or omit to state any material fact required  to be stated therein or necessary to make the statements therein not misleading, and that, in the  case of the related Prospectus, it will not contain any untrue statement of a material fact or omit to  state any material fact required to be stated therein or necessary to make the statements therein, in  the light of the circumstances under which they were made, not misleading, or of the necessity to  amend the Registration Statement or supplement a related Prospectus to comply with the Securities  Act or any other law (and the Company will promptly make available to the Investor any such  supplement or amendment to the related Prospectus); and (v) the Company’s reasonable  determination that a post-effective amendment to the Registration Statement would be required  under Applicable Laws. The Company shall not deliver to the Investor any Advance Notice, and  the Company shall not sell any Shares pursuant to any pending Advance Notice (other than as  required pursuant to Section 2.02(e)), during the continuation of any of the foregoing events (each  of the events described in the immediately preceding clauses (i) through (v), inclusive, a “Material  Outside Event”). Section 6.09 Issuance of the Shares. The issuance and sale of the Shares hereunder shall  be made in accordance with the provisions and requirements of Section 4(a)(2) of the Securities  Act and any applicable state securities law. Section 6.10 Expenses. The Company, whether or not the transactions contemplated  hereunder are consummated or this Agreement is terminated, will pay all expenses incident to the  performance of its obligations hereunder, including, but not limited to, (i) the preparation, printing  and filing of the Registration Statement and each amendment and supplement thereto, of each  Prospectus and of each amendment and supplement thereto; (ii) the preparation, issuance and  delivery of any Shares issued pursuant to this Agreement, (iii) all fees and disbursements of the  Company’s counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and  disbursements of the Investor’s counsel, accountants and other advisors), (iv) the qualification of  





 






- 29 - US-DOCS\131770162.7 the Shares under applicable securities laws in accordance with the provisions of this Agreement,  including filing fees in connection therewith, (v) the printing and delivery of copies of any  Prospectus and any amendments or supplements thereto, (vi) the fees and expenses incurred in  connection with the listing or qualification of the Shares for trading on the Principal Market or  (vii) filing fees of the SEC and the Principal Market.  Section 6.11 Current Report. Except as contemplated or required under this Agreement,  including but not limited to Section 6.01 hereof, the Company shall not, and the Company shall  cause each of its Subsidiaries and each of its and their respective officers, directors, employees  and agents not to, provide the Investor with any material, non-public information regarding the  Company or any of its Subsidiaries without the express prior written consent of the Investor (which  may be granted or withheld in the Investor’s sole discretion and, if granted, must include an  agreement to keep such information confidential until publicly disclosed); it being understood that  the mere notification of the Investor required pursuant to Section 6.08(iv) hereof shall not in and  of itself be automatically deemed to be material non-public information. Notwithstanding anything  contained in this Agreement to the contrary, the Company expressly agrees that it shall publicly  disclose, no later than four business days following the date hereof, but in any event prior to  delivering the first Advance Notice hereunder, any information communicated to the Investor by  or, to the knowledge of the Company, on behalf of the Company in connection with the  transactions contemplated herein, which, following the date hereof would, if not so disclosed,  constitute material, non-public information regarding the Company or its Subsidiaries (it being  understood that this provision shall be deemed satisfied with the filing of this Agreement in a  current or periodic report with the SEC). Section 6.12 Advance Notice Limitation. The Company shall not deliver an Advance  Notice if a stockholder meeting (other than an annual stockholder meeting which contains only  routine matters) or corporate action date, or the record date for any stockholder meeting or any  corporate action, would fall during the period beginning two Trading Days prior to the date of  delivery of such Advance Notice and ending two Trading Days following the Closing of such  Advance.  Section 6.13 Use of Proceeds. The Company will use the proceeds from the sale of the  Advance Shares hereunder and from the Promissory Note for working capital and other general  corporate purposes or, if different, in a manner consistent with the application thereof described in  the Registration Statement, as may be amended or supplemented from time to time. Section 6.14 Compliance with Laws. The Company shall use commercially reasonably  efforts to comply in all material respects with all Applicable Laws.  Section 6.15 Market Activities. Neither the Company, nor any Subsidiary, nor any of  their respective officers, directors or controlling persons, will, directly or indirectly, (i) take any  action designed to cause or result in, or that might reasonably be expected to constitute or result  in, the stabilization or manipulation of the price of any security of the Company to facilitate the  sale or resale of Shares or (ii) sell, bid for or purchase Shares in violation of Regulation M, or pay  anyone any compensation for soliciting purchases of the Shares. Section 6.16 Trading Information. Upon the Company’s request, the Investor agrees to  





 






- 30 - US-DOCS\131770162.7 provide the Company with trading reports setting forth the number and average sales prices of  shares of Common Stock sold by the Investor during the prior trading week. Section 6.17 Selling Restrictions. (i) Except as expressly set forth below, the Investor  covenants that from and after the date hereof through and including the first Trading Day following  the expiration or termination of this Agreement as provided in Section 11.01 (the “Restricted  Period”), none of the Investor, any of its officers or any entity managed or controlled by the  Investor (collectively, the “Restricted Persons” and each of the foregoing is referred to herein as a  “Restricted Person”) shall, directly or indirectly, (i) engage in any “short sale” (as such term is  defined in Rule 200 of Regulation SHO of the Exchange Act) of the Class A Common or (ii)  hedging transaction, which establishes a net short position with respect to any securities of the  Company (including the Class A Common), with respect to each of clauses (i) and (ii) hereof,  either for its own principal account or for the principal account of any other Restricted Person.  Notwithstanding the foregoing, it is expressly understood and agreed that nothing contained herein  shall (without implication that the contrary would otherwise be true) prohibit any Restricted Person  during the Restricted Period from: (1) selling “long” (as defined under Rule 200 promulgated  under Regulation SHO) the Shares; or (2) selling a number of shares of Class A Common equal to  the number of Shares that such Restricted Person is unconditionally obligated to purchase under a  pending Advance Notice but has not yet received from the Company or the transfer agent pursuant  to this Agreement. Section 6.18 Prohibited Indebtedness. For so long as any Promissory Note is outstanding,  the Company shall not, and will not permit any of its Subsidiaries to, directly or indirectly, enter  into or incur any indebtedness or obligations evidenced by notes, bonds, debentures, letters of  credit or other similar instruments (collectively, “Indebtedness”) with Person that is an officer,  director, related party or affiliate of the Company immediately prior to the time such Indebtedness  is incurred unless: (A) the repayment of such Indebtedness has been fully subordinated to the  payment of the outstanding Promissory Note on terms and conditions acceptable to the Investor,  including with regard to interest payments and repayment of principal; (B) such Indebtedness does  not mature or otherwise require or permit redemption or repayment prior to or on the 91st day after  the maturity date of the outstanding Promissory Note; and (C) such Indebtedness is not secured by  any assets of the Company or its Subsidiaries. Article VII.  Conditions for Delivery of Advance Notice Section 7.01 Conditions Precedent to the Right of the Company to Deliver an Advance  Notice. The right of the Company to deliver an Advance Notice and the obligations of the Investor  hereunder with respect to an Advance are subject to the satisfaction or waiver, on each Advance  Notice Date (a “Condition Satisfaction Date”), of each of the following conditions: (a) Accuracy of the Company’s Representations and Warranties. The  representations and warranties of the Company in this Agreement shall be true and correct  in all material respects. (b) Registration of the Shares with the SEC. There is an effective Registration  Statement pursuant to which the Investor is permitted to utilize the Prospectus thereunder  





 






- 31 - US-DOCS\131770162.7 to resell all of the Advance Shares issuable pursuant to such Advance Notice.  (c) Authority. The Company shall have obtained all permits and qualifications  required by any applicable state for the offer and sale of all the Advance Shares issuable  pursuant to such Advance Notice, or shall have the availability of exemptions therefrom.  The sale and issuance of such Advance Shares shall be legally permitted by all laws and  regulations to which the Company is subject. (d) No Material Outside Event. No Material Outside Event shall have occurred  and be continuing.  (e) Performance by the Company. The Company shall have performed,  satisfied and complied in all material respects with all covenants, agreements and  conditions required by this Agreement to be performed, satisfied or complied with by the  Company at or prior the applicable Condition Satisfaction Date (for the avoidance of doubt,  other than in respect of the Company’s obligation pursuant to Clause 2.02 herein, if the  Company shall have performed, satisfied and complied in all material respects with all  covenants, agreements and conditions required by this Agreement at the time of the  applicable Condition Satisfaction Date, but did not comply with any timing requirement  set forth herein, then this condition shall be deemed satisfied unless the Investor is  materially prejudiced by the failure of the Company to comply with any such timing  requirement). (f) No Injunction. No statute, rule, regulation, executive order, decree, ruling  or injunction shall have been enacted, entered, promulgated or endorsed by any court or  governmental authority of competent jurisdiction that prohibits or directly, materially and  adversely affects any of the transactions contemplated by this Agreement. (g) No Suspension of Trading in or Delisting of Class A Common Stock. The  Class A Common Stock is quoted for trading on the Principal Market and all of the  Advance Shares issuable pursuant to such Advance Notice will be approved for trading on  the Principal Market. The issuance of Advance Shares with respect to the applicable  Advance Notice will not violate the stockholder approval requirements of the Principal  Market. The Company shall not have received any written notice that is then still pending  threatening the continued quotation of the Class A Common Stock on the Principal Market. (h) Authorized. There shall be a sufficient number of authorized but unissued  and otherwise unreserved shares of Class A Common Stock for the issuance of all of the  Advance Shares issuable pursuant to such Advance Notice.  (i) Executed Advance Notice. The representations contained in the applicable  Advance Notice shall be true and correct in all material respects as of the applicable  Condition Satisfaction Date. (j) Consecutive Advance Notices. Except with respect to the first Advance  Notice, the applicable Pricing Period for all prior Advances shall have been completed and  the Company shall have delivered all Shares relating to all prior Advances. 





 






- 32 - US-DOCS\131770162.7 Article VIII.  Non-Disclosure of Non-Public Information The Company covenants and agrees that, other than as expressly required by this  Agreement, including Section 6.01 and Section 6.08 or, with the Investor’s consent, pursuant to  Section 6.01(c) and Section 6.11, it shall refrain from disclosing, and shall use its commercially  reasonably efforts to cause its officers, directors, employees and agents to refrain from disclosing,  any material non-public information (as determined under the Securities Act, the Exchange Act or  the rules and regulations of the SEC) to the Investor without also disseminating such information  to the public, unless, prior to disclosure of such information, the Company identifies such  information as being material non-public information and provides the Investor with the  opportunity to accept or refuse to accept such material non-public information for review. Unless  specifically agreed to in writing, in no event shall the Investor have a duty of confidentiality, or be  deemed to have agreed to maintain information in confidence, with respect to the delivery of any  Advance Notices. Article IX.  Non-Exclusive Agreement Notwithstanding anything contained herein, this Agreement and the rights awarded to the  Investor hereunder are non-exclusive, and the Company may, at any time throughout the term of  this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or  securities and/or convertible notes, bonds, debentures, options to acquire shares or other securities  and/or other facilities which may be converted into or replaced by shares of Class A Common  Stock or other securities of the Company, and to extend, renew and/or recycle any bonds and/or  debentures, and/or grant any rights with respect to its existing and/or future share capital. Article X.  Choice of Law/Jurisdiction This Agreement shall be governed by and interpreted in accordance with the laws of the  State of New York without regard to the principles of conflict of laws. The parties further agree  that any action between them shall be heard in New York County, New York, and expressly  consent to the jurisdiction and venue of the Supreme Court of New York, sitting in New York  County, New York and the United States District Court of the Southern District of New York,  sitting in New York, New York, for the adjudication of any civil action asserted pursuant to this  Agreement.  Article XI. Assignment; Termination Section 11.01 Assignment. Neither this Agreement nor any rights or obligations of the  parties hereto may be assigned to any other Person.  Section 11.02 Termination.  (a) Unless earlier terminated as provided hereunder, this Agreement shall  terminate automatically on the earlier of (i) the first day of the month next following the  36-month anniversary of the date hereof and (ii) the date on which the Investor shall have  





 






- 33 - US-DOCS\131770162.7 made payment of Advances pursuant to this Agreement for Advance Shares equal to the  Commitment Amount.  (b) The Company may terminate this Agreement effective upon five Trading  Days’ prior written notice to the Investor; provided that (i) there are no outstanding  Advance Notices, the Advance Shares under which have yet to be issued, and (ii) the  Company has paid all amounts owed to the Investor pursuant to this Agreement. This  Agreement may be terminated at any time by the mutual written consent of the parties,  effective as of the date of such mutual written consent unless otherwise provided in such  written consent. (c) Nothing in this Section 11.02 shall be deemed to release the Company or  the Investor from any liability for any breach under this Agreement, or to impair the rights  of the Company and the Investor to compel specific performance by the other party of its  obligations under this Agreement. The indemnification provisions contained in Article V  shall survive termination hereunder.  Article XII. Notices Other than with respect to Advance Notices, which must be in writing and will be deemed  delivered on the day set forth in Section 2.01(b), any notices, consents, waivers or other  communications required or permitted to be given under the terms of this Agreement must be in  writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally;  (ii) upon receipt, when sent by facsimile or e-mail if sent on a Trading Day, or, if not sent on a  Trading Day, on the immediately following Trading Day; (iii) five days after being sent by U.S.  certified mail, return receipt requested; or (iv) one day after deposit with a nationally recognized  overnight delivery service; in each case properly addressed to the party to receive the same. The  addresses and e-mail addresses for such communications (except for Advance Notices which shall  be delivered in accordance with Exhibit A attached hereto) shall be: If to the Company, to: Bird Global, Inc. 392 NE 191st Street #20388 Miami, Florida 33179 Attention: General Counsel Telephone (866) 205-2442 E-mail: lisa.murison@bird.co With a copy (which shall not  constitute notice or delivery of  process) to: Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, District of Columbia 20004 Attention: Rachel W. Sheridan; Christopher J. Clark Telephone: (202) 637-2200 E-mail: rachel.sheridan@lw.com;  christopher.j.clark@lw.com If to the Investor: YA II PN, Ltd. 1012 Springfield Avenue 





 






- 34 - US-DOCS\131770162.7 or at such other address and/or e-mail and/or to the attention of such other person as the recipient  party has specified by written notice given to each other party three Business Days prior to the  effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such  notice, consent, waiver or other communication, (ii) electronically generated by the sender’s email  service provider containing the time, date, recipient email address or (iii) provided by a nationally  recognized overnight delivery service shall be rebuttable evidence of personal service, receipt by  facsimile or receipt from a nationally recognized overnight delivery service in accordance with  clause (i), (ii) or (iii) above, respectively. Article XIII. Miscellaneous Section 13.01 Counterparts. This Agreement may be executed in identical counterparts,  both which shall be considered one and the same agreement and shall become effective when  counterparts have been signed by each party and delivered to the other party. Facsimile or other  electronically scanned and delivered signatures (including any electronic signature covered by the  U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures  and Records Act or other applicable law, e.g., www.docusign.com), including by e-mail  attachment, shall be deemed to have been duly and validly delivered and be valid and effective for  all purposes of this Agreement.  Section 13.02 Entire Agreement; Amendments. This Agreement supersedes all other prior  oral or written agreements among the Investor, the Company, their respective affiliates and persons  acting on their behalf with respect to the matters discussed herein, and this Agreement contains  the entire understanding of the parties with respect to the matters covered herein and, except as  specifically set forth herein, neither the Company nor the Investor makes any representation,  warranty, covenant or undertaking with respect to such matters. No provision of this Agreement  may be waived or amended other than by an instrument in writing signed by the parties to this  Agreement. Section 13.03 Reporting Entity for the Class A Common Stock. The reporting entity relied  upon for the determination of the trading price or trading volume of the Class A Common Stock  on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. The written  mutual consent of the Investor and the Company shall be required to employ any other reporting  entity. All references in this Agreement to “Bloomberg, L.P.” shall be understood to include any  successor thereto or any other reporting entity consented to pursuant to this Section 13.03. Mountainside, New Jersey 07092 Attention: Mark Angelo, Portfolio Manager Telephone: (201) 985-8300  E-mail: mangelo@yorkvilleadvisors.com With a copy (which shall not  constitute notice or delivery of  process) to: David Fine, Esq. 1012 Springfield Avenue Mountainside, New Jersey 07092 Telephone: (201) 985-8300 E-mail: legal@yorkvilleadvisors.com 





 






- 35 - US-DOCS\131770162.7 Section 13.04 Commitment and Structuring Fee. Each of the parties shall pay its own fees  and expenses (including the fees of any attorneys, accountants, appraisers or others engaged by  such party) in connection with this Agreement and the transactions contemplated hereby, except  that the Company shall pay to YA Global II SPV, LLC, a subsidiary of the Investor, a structuring  fee in the amount of $10,000, which the Investor acknowledges has been received prior to the date  hereof. The Company shall pay to the Investor a commitment fee in the aggregate amount of  217,203 shares of Class A Common Stock (the “Commitment Shares”) to the Investor in three  equal installments of 72,401 Commitment Shares each. The (i) first installment shall be issued to  the Investor on the date of this Agreement or promptly thereafter; (ii) second installment shall be  issued to the Investor on the three-month anniversary of the date of this Agreement; and (iii) third  installment shall be issued to the Investor on the six-month anniversary of the date of this  Agreement; provided that, in the case of the second and third installments of the Commitment  Share issuances, if on the scheduled date of issuance of such Commitment Shares (x) a Registration  Statement is not effective for resales of such Commitment Shares, (y) a Black Out Period is  imposed or (z) a Material Outside Event shall have occurred and be continuing, such Commitment  Shares will be issued on the scheduled date of issuance of such Commitment Shares, without  penalty, notwithstanding that a Registration Statement is not effective for resales of such  Commitment Shares, a Black Out Period is imposed or a Material Outside Event shall have  occurred and be continuing, and the Company shall not be in violation of any other provision of  this Agreement as a result thereof. Section 13.05 Brokerage. Each of the parties hereto represents that it has had no dealings  in connection with this transaction with any finder or broker who will demand payment of any fee  or commission from the other party. The Company, on the one hand, and the Investor, on the other  hand, agree to indemnify the other against and hold the other harmless from any and all liabilities  to any person claiming brokerage commissions or finder’s fees on account of services purported  to have been rendered on behalf of the indemnifying party in connection with this Agreement or  the transactions contemplated hereby. [Signature Pages Follow] 





 






[Signature Page to Standby Equity Purchase Agreement]  IN WITNESS WHEREOF, the parties hereto have caused this Standby Equity Purchase Agreement to be executed by the undersigned, thereunto duly authorized, as of the date first set  forth above.   COMPANY:   BIRD GLOBAL, INC.       By:          Name:    Title:                INVESTOR:   YA II PN, LTD.      By: Yorkville Advisors Global, LP   Its: Investment Manager     By:  Yorkville Advisors Global II, LLC  Its:  General Partner    By:          Name:    Title:      Travis VanderZanden CEO Doc ID: 293673ac80d2fc6ebfd0e1e2d6b004d92574bfc3 





 






 





 






US-DOCS\131770162.7 EXHIBIT C PROMISSORY NOTE 





 






Final Form US-DOCS\131809135.6 THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF  1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE  SECURITIES LAWS. THIS NOTE HAS BEEN SOLD IN RELIANCE UPON AN  EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH  STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR  SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT  UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION  FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION  REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH  APPLICABLE STATE SECURITIES LAWS. THIS NOTE WAS ISSUED WITH “ORIGINAL ISSUE DISCOUNT” WITHIN THE  MEANING OF SECTION 1272, ET SEQ. OF THE U.S. INTERNAL REVENUE CODE OF  1986, AS AMENDED. UPON WRITTEN REQUEST, BIRD GLOBAL, INC. (THE  “BORROWER”) WILL PROVIDE TO ANY HOLDER OF THE NOTE (1) THE ISSUE  PRICE AND DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE  DISCOUNT ON THE NOTE AND (3) THE ORIGINAL YIELD TO MATURITY OF THE  NOTE. SUCH REQUEST SHOULD BE SENT TO THE BORROWER AT BIRD GLOBAL,  INC., 392 NE 191ST STREET #20388, MIAMI, FLORIDA 33179, ATTENTION: CHIEF  FINANCIAL OFFICER. BIRD GLOBAL, INC. PROMISSORY NOTE No. BRDS-1 Original Principal Amount: $21,000,000 Note Issuance Date: [                  ] FOR VALUE RECEIVED, BIRD GLOBAL, INC., a company incorporated under the  laws of the State of Delaware (the “Borrower”), hereby promises to pay YA II PN, LTD., a  Cayman Islands exempt limited partnership, or its registered assigns (the “Holder”) (i) the  outstanding portion of the amount set out above as the Original Principal Amount (as reduced  pursuant to the terms hereof pursuant to scheduled payment, redemption or otherwise, the  “Principal”) when due, whether upon the Maturity Date (as defined below), acceleration,  redemption or otherwise (in each case in accordance with the terms hereof) and (ii) to pay interest  (“Interest”) (if any) on any outstanding Principal at the applicable Interest Rate (as defined below)  from the date set out above as the Note Issuance Date (the “Issuance Date”) until the same is paid,  whether upon the Maturity Date, acceleration, redemption or otherwise (in each case in accordance  with the terms hereof) pursuant to the terms of this Promissory Note (this “Note”).  This Note is being issued pursuant to Section 2.05 of the Standby Equity Purchase  Agreement, dated as of May 12, 2022 between the Borrower and YA II PN, Ltd. (as amended, the  “SEPA”). Upon the issuance of this Note by the Borrower and delivery of the same to the Holder,  the Holder shall pay to the account of the Borrower the Original Principal Amount of this Note in  immediately available funds in accordance with a closing statement in the form of Exhibit A  





 






- 2 - US-DOCS\131809135.6 attached hereto.  1. CERTAIN DEFINITIONS. For purposes of this Note, the following terms shall  have the following meanings: (a) “Accelerated Amount” shall have the meaning set forth in Section 4. (b) “Advance Amount” shall have the meaning given to it in the SEPA. (c) “Advance Date” shall have the meaning given to it in the SEPA. (d) “Advance Notice” shall have the meaning given to it in the SEPA. (e) “Advance Repayment” shall have the meaning set forth in Section 2(c). (f) “Borrower” shall have the meaning set forth in the preamble of this Note.  (g) “Borrower Repayment” shall have the meaning set forth in Section 2(c). (h) “Business Day” shall mean any day except Saturday, Sunday and any day  which shall be a federal legal holiday in the United States or a day on which banking  institutions are authorized or required by law or other government action to close. (i) “Change in Control” shall have the meaning set forth in Section 3(c). (j) “Closing” shall have the meaning given to it in the SEPA. (k) “Combination Repayment” shall have the meaning set forth in Section 7(h). (l) “Combination Repayment” shall have the meaning set forth in Section 2(c). (m) “Deferred Repayment Schedule” shall have the meaning set forth in Section  2(a).  (n) “Event of Default” shall have the meaning set forth in Section 3. (o) “Holder” shall have the meaning set forth in the preamble of this Note.  (p) “Installment Amount” shall mean the amount of Principal set out under the  column “Installment Amount” in the Repayment Schedule.  (q) “Interest” shall have the meaning set forth in the preamble of this Note.  (r) “Interest Rate” shall have the meaning set forth in Section 2(c). (s) “Issuance Date” shall have the meaning set forth in the preamble of this  Note.  (t) “Maturity Date” shall have the meaning set forth in Section 2(a).  





 






- 3 - US-DOCS\131809135.6 (u) “Note” shall have the meaning set forth in the preamble of this Note.  (v) “Principal” shall have the meaning set forth in the preamble of this Note.  (w) “Premium Amount” shall mean 2.00% of the Installment Amount being  repaid pursuant to a Borrower Repayment or the portion of any Combination Repayment  constituting a Borrower Repayment.  (x) “Repayment Date” shall mean each date under the heading “Repayment  Date” as set forth on the Repayment Schedule. (y) “Repayment Notice” shall have the meaning set forth in Section 2(c).  (z) “Repayment Notice Due Date” shall have the meaning set forth in Section  2(c). (aa) “Repayment Schedule” shall mean the schedule of repayments as set out on  Exhibit B, or such other schedule of repayments as the parties may agree in writing from  time to time. (bb) “SEPA” shall have the meaning set forth in the preamble of this Note.  (cc) “Subsidiary” shall have the meaning given to it in the SEPA. 2. GENERAL TERMS (a) Maturity Date. On the Maturity Date, the Borrower shall pay to the Holder  an amount in cash representing all then-outstanding Principal, accrued and unpaid Interest  (if any) and any other amounts outstanding pursuant to the terms of this Note. The  “Maturity Date” shall be [                  ]1, as may be extended by up to [                  ]2 upon  written notice from the Borrower electing to follow the “Deferred Repayment Schedule”  as set forth on Exhibit B hereto (the “Deferred Repayment Schedule”). (b) Interest. Interest shall accrue on the outstanding Principal balance hereof at  a rate per annum equal to 0.00%; provided that such rate shall increase to 15.00% per  annum for so long as any Event of Default has occurred and remains uncured (the “Interest  Rate”). Interest shall be calculated on the basis of a 365-day year and the actual number of  days elapsed, to the extent permitted by applicable law. (c) Monthly Installment Payments. The Borrower shall, at its own option, (i)  repay in cash any Installment Amount (a “Borrower Repayment”) on the applicable  Repayment Date, subject to the provisions of this Section 2(c) and Section 2(d), (ii) repay  any Installment Amount by submitting an Advance Notice (an “Advance Repayment”)  with an Advance Date on or before the applicable Repayment Date, subject to the  provisions of Section 2(e), or (iii) repay any Installment Amount in a combination of a  1 Insert date 6 months from Issuance Date.  2 Insert date 7 months from Issuance Date. 





 






- 4 - US-DOCS\131809135.6 Borrower Repayment and an Advance Repayment (a “Combination Repayment”). On or  prior to the date that is the fifth Trading Day prior to each Repayment Date (each, a  “Repayment Notice Due Date”), the Borrower shall deliver written notice (each, an  “Borrower Repayment Notice”) to the Holder, which Borrower Repayment Notice shall  state that the Borrower elects to repay the applicable Installment Amount (i) in cash  pursuant to a Borrower Repayment, (ii) by an Advance Repayment or (iii) by a  Combination Repayment. If the Borrower does not timely deliver a Borrower Repayment  Notice in accordance with this Section 2(c), then the Borrower shall be deemed to have  delivered a Borrower Repayment Notice confirming that the applicable Installment  Amount will be repaid in cash pursuant to a Borrower Repayment. Any payments made  hereunder prior to a Repayment Date shall reduce the amount due at the next Repayment  Date in chronological order. (d) Borrower Repayment. If the Borrower elects a Borrower Repayment or  Combination Repayment in accordance with Section 2(c), then the Borrower shall pay to  the Holder in cash by wire transfer of immediately available funds, on or before the  applicable Repayment Date, the applicable Installment Amount (or portion thereof that  constitutes a Borrower Repayment), plus the Premium Amount. (e) Advance Repayment. If the Borrower elects an Advance Repayment or  Combination Repayment in accordance with Section 2(c), then the Borrower shall deliver  an Advance Notice to the Holder in accordance with the terms and conditions of the SEPA  requesting an Advance Amount equal to or greater than the applicable Installment Amount  (or portion thereof that constitutes an Advance Repayment), which Advance Notice will  provide for an Advance Date on or before the applicable Repayment Date. Upon the  Closing of such Advance in accordance with Section 2.02 of the SEPA, the Holder shall  offset the amount due to be paid by the Holder to the Borrower under the SEPA against the  portion of the Installment Amount to be paid by the Advance Repayment. If any portion of  the Installment Amount remains unpaid at the applicable Repayment Date, the Borrower  shall repay such outstanding Installment Amount in cash pursuant to a Borrower  Repayment. For the avoidance of doubt, the Premium Amount shall not apply in respect of  any Installment Amount paid by an Advance Repayment or the portion of any Combination  Repayment constituting an Advance Repayment, but shall apply to any Borrower  Repayment or the portion of any Combination Repayment constituting a Borrower  Repayment. (f) Repayment Schedule; Deferred Repayment Schedule. Upon issuance of this  Note, the Borrower may change any Repayment Date by up to seven days if such  Repayment Date is expected to fall on a Borrower blackout date, if such change would  allow the Repayment Date to fall on a date that is not on a Borrower blackout date. The  Borrower may elect to follow the Deferred Repayment Schedule by providing written  notice to the Holder on or before the first Repayment Notice Due Date. 3. EVENTS OF DEFAULT. An “Event of Default,” wherever used herein, means any  one of the following events (whatever the reason and whether it shall be voluntary or involuntary  or effected by operation of law or pursuant to any judgment, decree or order of any court, or any  order, rule or regulation of any administrative or governmental body) shall have occurred and be  





 






- 5 - US-DOCS\131809135.6 continuing: (a) the Borrower’s failure to pay to the Holder any amount of Principal, Interest  or other amounts when and as due and payable under this Note, and such failure is not  cured within five Business Days following the Holder’s written notice to the Borrower to  such effect; (b) the Borrower or any significant Subsidiary of the Borrower shall  commence, or there shall be commenced against the Borrower or any significant Subsidiary  of the Borrower under any applicable bankruptcy or insolvency laws as now or hereafter  in effect or any successor thereto, or the Borrower or any significant Subsidiary of the  Borrower commences, or there shall be commenced against the Borrower or any significant  Subsidiary of the Borrower, any other proceeding under any reorganization, arrangement,  adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law  of any jurisdiction whether now or hereafter in effect relating to the Borrower or any  significant Subsidiary of the Borrower, in each case, which remains undismissed for a  period of 61 days; or the Borrower or any significant Subsidiary of the Borrower is  adjudicated insolvent or bankrupt pursuant to a final, non-appealable order; or any order of  relief or other order approving any such case or proceeding is entered; or the Borrower or  any significant Subsidiary of the Borrower suffers any appointment of any custodian,  private or court appointed receiver or the like for it or any substantial part of its property  which continues undischarged or unstayed for a period of 61 days; or the Borrower or any  significant Subsidiary of the Borrower makes a general assignment for the benefit of  creditors; or the Borrower or any significant Subsidiary of the Borrower shall admit in  writing that it is unable to pay its debts generally as they become due; or the Borrower or  any significant Subsidiary of the Borrower shall call a meeting of its creditors with a view  to arranging a composition, adjustment or restructuring of its debts; or any corporate or  other action is taken by the Borrower or any significant Subsidiary of the Borrower for the  purpose of effecting any of the foregoing; (c) (1) the Borrower consummates any transaction or event (whether by means  of a share exchange or tender offer applicable to the Borrower’s common stock, a  liquidation, consolidation, recapitalization, reclassification, combination or merger of the  Borrower or a sale, lease or other transfer of all or substantially all of the consolidated  assets of the Borrower) or a series of related transactions or events pursuant to which all of  the outstanding common stock of the Borrower is exchanged for, converted into or  constitutes solely the right to receive cash, securities or other property; (2) a consolidation  or merger in which the Borrower is not the surviving corporation; or (3) a sale, assignment,  transfer, conveyance or other disposal of all or substantially all of the properties or assets  of the Borrower to another person or entity (each of (1), (2) and (3) a “Change in Control”);  unless in connection with such Change in Control, all Principal, accrued and unpaid Interest  due under this Note and any other amounts owed under this Note will be paid in full or the  Holder consents to such Change in Control; (d) the Borrower or any significant Subsidiary of the Borrower shall default in  any of its obligations under any debenture or any mortgage, credit agreement or other  facility, indenture agreement, factoring agreement or other instrument under which there  





 






- 6 - US-DOCS\131809135.6 may be issued, or by which there may be secured or evidenced any indebtedness for  borrowed money or money due under any long-term leasing or factoring arrangement of  the Borrower or any significant Subsidiary of the Borrower, whether such indebtedness  now exists or shall hereafter be created, in each case, in an amount exceeding $5,000,000,  and where the effect of such default is to cause the obligations thereunder to become due  and payable prior to the stated maturity in accordance with the terms of such instruments  and such default is not cured within five Business Days;  (e) the Class A Common Stock shall have been suspended from trading by the  U.S. Securities and Exchange Commission, The New York Stock Exchange or the  Financial Industry Regulatory Authority, Inc. (except for any suspension of trading of  limited duration or agreed to by the Borrower, which suspension shall not be more than  five Business Days); and (f) the Borrower materially breaches the terms of this Note or the SEPA beyond  any applicable notice and/or grace period. 4. REMEDIES UPON DEFAULT. During the time that any portion of this Note is  outstanding, if (i) any Event of Default has occurred (other than an Event of Default specified in  Section 3(b)), the Holder, by notice in writing to the Borrower, may at any time and from time to  time while such Event of Default remains uncured declare the full unpaid Principal of this Note or  any portion thereof, together with Interest accrued thereon, to be due and payable immediately (the  “Accelerated Amount”) or (ii) any Event of Default specified in Section 3(b) has occurred, the  Acceleration Amount shall be immediately and automatically due and payable without necessity  of further action. 5. REISSUANCE OF THIS NOTE. Upon receipt by the Borrower of evidence  reasonably satisfactory to the Borrower of the loss, theft, destruction or mutilation of this Note  and, in the case of loss, theft or destruction, of an indemnification undertaking by the Holder to  the Borrower in customary form and, in the case of mutilation, upon surrender and cancellation of  this Note, the Borrower shall execute and deliver to the Holder a new Note representing the  outstanding Principal, which Note (i) shall be of like tenor with this Note, (ii) shall represent, as  indicated on the face of such new Note, the Principal remaining outstanding, (iii) shall have an  issuance date, as indicated on the face of such new Note, that is the same as the Issuance Date of  this Note, (iv) shall have the same rights and conditions as this Note and (v) shall represent accrued  and unpaid Interest from the Issuance Date (if any). 6. NOTICES. Any notices, consents, waivers or other communications required or  permitted to be given under the terms hereof must be in writing and will be deemed to have been  delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile or  e-mail if sent on a Business Day, or, if not sent on a Business Day, on the immediately following  Business Day; (iii) five days after being sent by U.S. certified mail, return receipt requested; or  (iv) one day after deposit with a nationally recognized overnight delivery service; in each case  properly addressed to the party to receive the same. The addresses and e-mail addresses for such  communications shall be: 





 






- 7 - US-DOCS\131809135.6 If to the Borrower, to: Bird Global, Inc. 392 NE 191st Street #20388 Miami, Florida 33179 Attention: General Counsel Telephone (866) 205-2442 E-mail: lisa.murison@bird.co With a copy (which shall not  constitute notice or delivery of  process) to:  Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, District of Columbia 20004 Attention: Rachel W. Sheridan; Christopher J. Clark Telephone: (202) 637-2200 E-mail: rachel.sheridan@lw.com;  christopher.j.clark@lw.com If to the Holder: YA II PN, Ltd. 1012 Springfield Avenue Mountainside, New Jersey 07092 Attention: Mark Angelo, Portfolio Manager Telephone: (201) 985-8300  E-mail: mangelo@yorkvilleadvisors.com With a copy (which shall not  constitute notice or delivery of  process) to: David Fine, Esq. 1012 Springfield Avenue Mountainside, New Jersey 07092 Telephone: (201) 985-8300 E-mail: legal@yorkvilleadvisors.com or at such other address and/or e-mail and/or to the attention of such other person as the recipient  party has specified by written notice given to each other party three Business Days prior to the  effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such  notice, consent, waiver or other communication, (ii) electronically generated by the sender’s email  service provider containing the time, date, recipient email address or (iii) provided by a nationally  recognized overnight delivery service shall be rebuttable evidence of personal service, receipt by  facsimile or receipt from a nationally recognized overnight delivery service in accordance with  clause (i), (ii) or (iii) above, respectively. 7. General. (a) No provision of this Note shall alter or impair the obligations of the  Borrower, which are absolute and unconditional, to pay the Principal of or Interest (if any)  on this Note at the time, place and rate, and in the currency, herein prescribed. This Note  is a direct obligation of the Borrower. As long as this Note is outstanding, the Borrower  shall not and shall cause its significant Subsidiaries not to, without the consent of the  Holder, (i) amend its articles of incorporation, bylaws or other charter documents so as to  adversely affect any rights of the Holder under this Note in any material respect, (ii) enter  into any agreement with respect to any of the foregoing or (iii) incur any indebtedness, or  





 






- 8 - US-DOCS\131809135.6 enter into any note, indenture, debenture or any other agreement that would prohibit or  limit the Borrower from performing any of its obligations under this Note in any material  respect. (b) This Note shall be governed by and interpreted in accordance with the laws  of the State of New York, without regard to the principles of conflict of laws. Each of the  parties consents to the jurisdiction of the state courts of the State of New York and the  U.S. District Court for the District of New York sitting in Manhattan in connection with  any dispute arising under this Note, and hereby waives, to the maximum extent permitted  by law, any objection, including any objection based on forum non conveniens, to the  bringing of any such proceeding in such jurisdictions.  (c) If an Event of Default has occurred, then the Borrower shall reimburse the  Holder promptly for all reasonable and documented out-of-pocket fees, costs and expenses,  including, without limitation, reasonable attorneys’ fees and expenses, incurred by the  Holder in any action in connection with this Note, including, without limitation, those  incurred: (i) during any workout or attempted workout and/or in connection with the  rendering of legal advice as to the Holder’s rights, remedies and obligations; (ii) collecting  any sums that become due to the Holder in accordance with the terms of this Note; (iii)  defending or prosecuting any proceeding or any counterclaim to any proceeding or appeal;  or (iv) the protection, preservation or enforcement of any rights or remedies of the Holder. (d) Any waiver by the Holder of a breach of any provision of this Note shall  not operate as or be construed to be a waiver of any other breach of such provision or of  any breach of any other provision of this Note. The failure of the Holder to insist upon  strict adherence to any term of this Note on one or more occasions shall not be considered  a waiver or deprive that party of the right thereafter to insist upon strict adherence to that  term or any other term of this Note. Any waiver must be in writing. (e) If any provision of this Note is invalid, illegal or unenforceable, the balance  of this Note shall remain in effect, and if any provision is inapplicable to any person or  circumstance, it shall nevertheless remain applicable to all other persons and  circumstances. If it shall be found that any Interest or other amount deemed Interest due  hereunder shall violate applicable laws governing usury, the applicable rate of Interest due  hereunder shall automatically be lowered to equal the maximum permitted rate of interest.  The Borrower covenants (to the extent that it may lawfully do so) that it shall not at any  time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage  of, any stay, extension or usury law or other law that would prohibit or forgive the Borrower  from paying all or any portion of the Principal of or Interest on this Note as contemplated  herein, wherever enacted, now or at any time hereafter in force, or that may affect the  covenants or the performance of this Note, and the Borrower (to the extent it may lawfully  do so) hereby expressly waives all benefits or advantage of any such law, and covenants  that it will not, by resort to any such law, hinder, delay or impede the execution of any  power herein granted to the Holder, but will suffer and permit the execution of every such  as though no such law had been enacted. (f) Whenever any payment or other obligation hereunder shall be due on a day  





 






- 9 - US-DOCS\131809135.6 other than a Business Day, such payment shall be made on the next succeeding Business  Day. (g) Assignment of this Note by the Borrower shall be prohibited without the  prior written consent of the Holder. Assignment of this Note by the Holder shall be  prohibited without the prior written consent of the Borrower. If any assignment is made,  the Borrower shall keep a register indicating the ownership of the Notes with the intent that  the Notes are treated as in registered form for U.S. federal income tax purposes. (h) The Holder hereby represents and warrants that it is (x) not a bank receiving  payments on an extension of credit made pursuant to a loan agreement entered into in the  ordinary course of its trade or business, as described in section 881(c)(3)(A) of the Internal  Revenue Code of 1986, as amended (the “Code”), (y) not a “10-percent shareholder” of  the Borrower within the meaning of section 871(h)(3) of the Code and (z) not a controlled  foreign corporation that is related to the Borrower within the meaning of section  881(c)(3)(C) of the Code. For the avoidance of doubt, the representations under this Section  7(h), in the case the Holder is an intermediary or partnership, shall also apply to the  Holder’s direct or indirect owners so as to ensure payments can be made to the Holder  without requirement of U.S. withholding tax under the portfolio interest exemption. (i) The Holder shall provide the Borrower with an executed Internal Revenue  Service Form W-9 or applicable Internal Revenue Service Form W-8 and shall update such  form upon request from the Borrower. The Holder shall also provide such other  documentation as may be reasonably requested by the Borrower from time to time in order  for the Borrower to determine the Borrower’s withholding and information reporting  obligations. (j) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND  INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL  BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT  OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY COURSE OF  CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR  WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL  INDUCEMENT FOR THE PARTIES’ ACCEPTANCE OF THIS NOTE. [Signature Page Follows] 





 






[Signature Page to Promissory Note] IN WITNESS WHEREOF, the parties hereto have caused this Promissory Note to be executed  by the undersigned, thereunto duly authorized, as of the date first set forth above. BORROWER: BIRD GLOBAL, INC.  By: Name:  Title:  HOLDER: YA II PN, LTD. By: Yorkville Advisors Global, LP Its: Investment Manager By: Yorkville Advisors Global II, LLC Its: General Partner By: Name: Title: